ATG Original: Digital Lending: Part 2- Library Values & A Major Lawsuit Work to Up-End User Services During Covid

by | Jun 15, 2020 | 0 comments

by Nancy K. Herther (writer, consultant and Sociology/Anthropology Librarian, University of Minnesota Libraries

Historian Karin Wulf notes in a recent Scholarly Kitchen posting that “to isolate readers from the systems of which they are one part is to ignore this interdependence. To elevate the needs of the reader above all others is to dismiss the compensated labor of archivists, authors, compositors, designers, editors, librarians, marketers, metadata creators, and all the other myriad people involved in bringing knowledge into being and into the marketplace. We can be consumers for free, but not compensated producers.” 

On June first, four AAP publishers —Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House—filed a copyright infringement lawsuit against Internet Archive (IA) in the U.S. District Court for the Southern District of New York. According to AAP, IA violated that law and that “this lawsuit condemns the fact that IA solicits and collects truckloads of in-copyright books in order to copy and make them available without permission, purposely denigrating their commercial value.” 

Although the suit doesn’t directly attack library efforts during the COVID crisis, they assert that “IA’s Website steers readers away from the digital platforms that local public libraries continue to operate.” IA, the suit alleges, has been left “essentially to freely disseminate scanned copies of every physical book it can lay its hands on,” calling IA “parasitic and illegal.” 

infoDOCKET’s Gary Price is maintaining a set of good links to all of the court documents and key statements as this case unfolds. We contacted AAP, the Authors Guild and others for comment but were unable to get their comments by press time.


David R. Hansen

David R. Hansen is Duke University’s Associate University Librarian for Research, Collections & Scholarly Communications and Lead Copyright & Information Policy Officer. He is also the lead author of the “A White Paper on Controlled Digital Lending of Library Books,” which provided a legal and philosophical basis for “how libraries can legally lend digital copies of books. It explains the legal and policy rationales for the process— “controlled digital lending”— as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending.”  Who better to talk about the impact of the current situation on CDL and now the Internet Archive lawsuit?

NKH:  As one of the co-authors of the Controlled Digital Lending by Libraries statement, I was wondering how you see this coming up with the IA’s Networked Digital Library? 

CDL Model

DRH: Well, beyond AAP’s statements, the recently filed lawsuit certainly could have an impact on IA’s activities. It’s important to distinguish, however, between what IA has been doing for many years, which is loaning digital copies of books out on a “controlled digital lending” model that has strict controls on access and requires a physical copy to act as the ‘backup’ for the digital copy, and the National Emergency Library which doesn’t follow the CDL model and instead is crafted to respond to the needs of schools and educators in response to the rapid loss of access to libraries and learning materials in the face of the Coronavirus shutdown. 

NKH: Have we made any progress in getting acceptance or “agreeing to disagree” on this issue from author/publishing groups? 

DRH: There have been some encouraging signs – the authors group the Authors Alliance has endorsed the CDL model, and several publishers have voluntarily included their materials in IA’s digital library to be lent both under CDL and through the less restrictive National Emergency Library. But among the AAP and groups like the Authors Guild, I have not seen any indication that they are willing to engage in any kind of compromise to find a way to access library materials. Unfortunately the only solution offered is to purchase a digital license for back-list books, which is both currently impossible because those licenses aren’t actually offered for most older books, and challenging from a fiscal perspective for libraries; they’ve already invested millions of dollars over the years in purchasing these books, often with public funds. Now they are being told they must pay again.  

NKH: Is this a “slow simmering” issue or is there chance of resolving this either through negotiation, administrative decision or court case?

DRH: I think the recently filed lawsuit could clarify the legal situation significantly, though it’s important to remember that the suit is limited to the facts in front of the court – which is solely Internet Archive’s implementation of CDL. There may be other implementations of CDL or similar services that other libraries run that could have a different outcome before a court. 


Even AAP members are looking at innovative ways to serve their core markets, by “working to find ways to sustain their prime audiences at this historic impasse by opening up their collections through their existing online links and contracts.”  As Cambridge University explains their program: “More than 700 textbooks, published and currently available on Cambridge Core – our online home for academic books and journals – are available online to students through their university library regardless of whether they were previously purchased… existing Cambridge Core customers can request free access to a collection of reference works for libraries during the same period existing Cambridge Core customers can request free access to a collection of reference works for libraries during the same period.” It may not open new markets or pay for future innovations – but it will help to see that they core clientèle are able to survive. 

Actresses Jennifer Garner and Amy Adams have set-up With Stories as a way to raise money for Save the Children and No Kid Hungry. And that’s not all.  A local Fox channel notes more examples:

In the push for Open Access, Nonprofit Quarterly has been reporting on how “the literary world has come up with countless ways of supporting readers as well as writers, even as libraries and independent bookstores have been shuttered, literary museums have closed indefinitely, and in-person writing workshops have been cancelled.”  Many children’s authors have established ‘pen-pal’ relationships with readers #WriteToAnAuthor. As another example, “Hidden Timber Books is making its Zoom platform available for virtual author readings (even as some authors joke that social distancing guidelines can easily be followed at literary readings without making changes).” Literature is an art, and it’s been interesting to see how people have been working to see that as much “normalcy” is maintained.


There are also some more heart-warming stories of university presses working with IA to create an agreement acceptable to both parties. “After IA acted unilaterally in creating the National Emergency Library,” the directors of the Duke University Press and University of North Carolina Press report, “we criticized the effort and presses began the process of withdrawing titles. However, after a conference call with the leadership of the IA and many university press directors, we realized our two presses shared many of the same goals of the NEL, but we simply disagreed with the process by which the main goal was being achieved.”

“After this conference call, we subsequently opened a separate line of communication with the IA and we’re pleased to announce that within a few days, we created a one-page Statement of Cooperation to allow our university press titles to participate in the NEL. Since then, they have shared the Statement with other university presses and now believe that “there couldn’t be a worse time to be arguing about something like this. Possibly the most important part of the joint statement is the last line: ‘The Parties commit to a sustained, good-faith dialog about a long-term model for including the Press’s titles in the Internet Archive.’ We have every confidence that we will make that happen.”


In the midst of the 1992 Los Angeles riots, Rodney King asked “can’t we all just get along?”

No one could have predicted this pandemic crisis and it’s deepening impact across the globe. “When written in Chinese,” John F. Kennedy is purported to have said, “the word crisis is composed of two characters –  one represents danger, and the other represents opportunity.” We are getting used to the daily crises; perhaps now is a good time to seek out opportunities for a better future for everyone in the writing/publishing/reading continuum. 

The livelihood of authors and sustainability of our system of our systems of publishing are critical issues and deserve serious consideration.  However, in the midst of such a cataclysmic pandemic, perhaps there are other issues that need to be handled first. “People who can afford to buy books should be buying books right now,” historian Jill Lepore noted in New Yorker recently, “but, meanwhile, in addition to a public health emergency, there is an educational emergency.” Schools and universities have been shuttered for the duration,  students are left to work independently to keep up with their studies. We can only hope that the COVID emergency ends soon and we can find a new normal that is fair to all.

Nancy K. Herther is a regular contributor to ATG and a former academic librarian.

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