The Authors Guild is America’s oldest and largest professional organization for authors. It’s also been fighting a 14-year battle to restrict books from being digitized. It’s now extending that fight to the library level — and in the process, essentially arguing that libraries shouldn’t be allowed to modernize or adapt to how modern users read books.
The internet and modern technology have both challenged and improved the resources available at your typical modern library. Banks of computers and research stations have joined the racks of encyclopedias and periodicals. It’s not uncommon to see DVDs or Blu-ray discs on the shelves. The rise of ebooks offers libraries a potential way to dramatically expand their libraries and offer patrons a new method of reading books on the smartphones, tablets, and Kindle devices they already own. But how does one control the distribution of a digital file?
Librarian David Hansen developed a system known as Controlled Digital Lending, or CDL. The CDL system allows a library to distribute digital copies of a book exactly the same way as it would distribute physical media. If the library has one digital copy of Dr. Chuck Tingle’s Complete Guide to Romance, it can lend that copy to one patron at a time. If a library owns three copies of a physical book and digitizes one of them, it can distribute two physical copies and one digital copy.
The system does not allow a library to distribute more copies of a work than it actually owns at any point, and physical copies of books being loaned out in digital form are taken out of circulation to ensure that the library never loans out two books when it only purchased one. The top goal of the CDL system as stated in the proposing whitepaper is to “Ensure that original works are acquired lawfully.” The chief benefit of the CDL system would be to digitize books that aren’t currently offered in ebook format to expand the reach of these works and allow them to be discovered by a broader group of readers.
Importantly, the CDL system requires that libraries maintain a 1:1 ratio between physical books and loaned media. A library must have purchased a physical copy of a book to loan it under this system.
CDL is a framework and concept for implementing a digital lending strategy, not a packaged product that libraries deploy. The usual concerns about making certain readers can’t copy books and keep them still apply. But it’s also a good-faith effort to meld two very different methods of media distribution in a way that allows libraries to advance their core mission in the modern era.
And the Authors Guild hates it.
Would You Like Some Cheese With That Whine?
According to the Authors Guild, the entire premise of CDL is faulty because the courts have already ruled that you cannot resell a used digital good. It’s true that the court case Capitol Records v. ReDigi established that ReDigi could not resell digital music, even if it took steps to ensure that music files had been permanently removed from the seller’s media library. But there’s one key difference between ReDigi and a CDL system: ReDigi was attempting to resell music as a business model. Libraries are seeking to distribute digital copies of media for educational and learning purposes.
Under 17 U.S. Code § 107, the very first test for a fair use argument is whether the purpose and character of the use is “of a commercial nature or is for nonprofit education purposes.” The question of whether a company can resell a digital work for profit has been addressed in a court of law. The question of whether a library can distribute a digital copy of a book it purchased physically at a 1:1 ratio has not. The Authors Guild ignores this point.
Authors lose potential income from every unauthorized loan made under the CDL theory. The digital reproductions and loans merely supplant the legitimate sale of ebooks, whether library editions that the library would otherwise license, or ebooks that the author or publisher would sell directly to consumers.
What the Authors Guild really wants to protect is the licensing agreements book publishers have created. Different publishers have different rules, but most require libraries to either purchase an ebook license at 3x normal book price, or to repurchase an ebook once it has been checked out a certain number of times. The CDL system shouldn’t even have an impact on the publisher ebook system — as proposed, it’s mostly a way for libraries to create ebook versions of texts that haven’t and won’t receive them. This nuance is ignored.
The other problem with the AG’s argument is that it assumes every ebook rental from a library represents a lost sale. This is simply untrue. The entire point of going to a library is to read a book that you might not have otherwise purchased, or to do research using materials you wouldn’t have access to at home. The library is where you go to check out a new author or series if you aren’t sure you want to buy. The purpose of libraries is to strike a balance between the common civic good of making information and media generally available to citizens and the commercial interests of publishers and authors.
The AG has no interest in that balance. It dismisses CDLs as an effort to give legal cover to “outright piracy.” The fact that it focuses on digitizing books that are unlikely to ever receive an ebook conversion is deemed irrelevant.
Ultimately, what the AG is demonstrating is its fundamental hostility to the idea of a library itself. The use-case questions raised by CDLs have not been answered in the courts. There’s absolutely no evidence to support the idea that every digital book rental from a library steals a sale from an author. But given the AG’s historic hatred for technology — it loathes both Google and Amazon, particularly the Kindle Lending Library — I suppose we shouldn’t be surprised.
Feature image by Loughborough University, Library Photography Competition 2011 (CC BY 2.0)
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