If you thought the controversy over library book scanning ended with the Google case, think again. This week the National Writers Union became the latest organization to join the outcry over a practice known as “controlled digital lending” (CDL), by which a library (or a nonprofit, like the Internet Archive) scans a print copy of a book they have legally acquired, then makes the scan available to be borrowed in lieu of the print book, using a DRM-protected one user/one copy model, and, crucially, taking the corresponding print book out of circulation while the digital copy is on loan.

In a release, NWU announced that it has authored a statement dubbed “The Appeal to Readers and Librarians from the Victims of CDL,” which has been co-signed by 36 other national and international organizations—including the Authors Guild, the Association of American Publishers, the International Publishers Association, and the U.K.-based Society of Authors among others.

“Well-meaning librarians, archivists, and readers, who don’t intend to deprive authors of their livelihoods, are being misled by false claims from proponents of CDL,” the appeal states, adding that “there is no basis for a good-faith belief that CDL is legal under either U.S. or international law.”

In a statement, Edward Hasbrouck, co-chair of the NWU’s Book Division appealed for “a dialogue among writers, authors, publishers, and librarians on how to enable and create the digital libraries we all want, in ways that fully respect authors’ rights.”

That plea is more measured than other recent statements on CDL, including from the Society of Authors, which last month threatened legal action against the Internet Archive's Open Library project, and the AAP, which said CDL “denigrates” the incentive copyright provides for authors and publishers.

The most visible proponent of CDL—and the clear target of the opposition—is the Internet Archive, and its ambitious Open Library project.

According to its web page, the Open Library initiative was formed in 2006 with the vision of creating “one web page for every book ever published.” But over the last 12 years, under the auspices of the Internet Archive, it has evolved into a broader library initiative "recognized by the state of California." And according to its website, Open Library has made over three million digital books available to be borrowed, including in-copyright books. A post on the Open Library blog says it lent 1.3 million books last year. For perspective, leading e-book service provider OverDrive reported last month that libraries in 2018 lent a total of 274 million digital books to library cardholders.

Well-meaning librarians, archivists, and readers, who don’t intend to deprive authors of their livelihoods, are being misled by false claims from proponents of CDL,” the appeal states.

It’s unclear why the issue of CDL is heating up now—whether there is actual evidence of a financial impact on authors, or whether the battle lines are being drawn more on principle. In its statement, the AAP argues that the Open Library scans are a substitute for commercially licensed e-books.

Librarians, however, say the program is undertaken in good faith, and the practice is not intended to act as "a substitute for existing electronic licensing services offered by publishers," according to a statement on a website devoted to CDL. However, another "position statement" on the same site appears to offer a broader take. "Properly implemented, CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner," that position statement reads, so long as an “owned to loaned” ratio is maintained in which "only one user can use any given copy at a time, for a limited time."

Michael Blackwell, director of the St. Mary's County Library, and an organizer of the ReadersFirst coalition, told PW that his library is experimenting with CDL essentially as an effort to backstop the library's mission as a collection-building cultural steward in a library e-book market that has proven contentious, costly, and uncertain thus far. "Our aim is not to include frontlist titles or to decrease purchases of such titles by the public," Blackwell explained, adding the library would not, for example, buy new works to include in its Open Library pilot.

“A Market failure is very much at the heart of our efforts to use the Open Library,” Blackwell says, noting that he is still in the early stages of a modest program to select and scan a collection of local history books, and a selection of older titles that no longer circulate, and for which licensing expensive digital editions that expire after 12 or 24 months in not an adequate solution. ”Older titles, especially those restricted by time-metered access are not necessarily less costly than new titles," he says. "For example, The Collected Stories of Katherine Anne Porter is available for $40 for a 24 month lease. I would own this title, which is of literary and cultural significance, on a one-copy/one-user perpetual lease. With my limited budget, however, it is crowded out by the need to buy higher demand titles that give better return on investment. If publishers would like to make the Open Library less attractive, they might consider offering variable licensing models or lowering costs on older titles."

Of course, therein lies the rub: after a few years of relative calm, some of the major publishers are showing signs of retreating from the library e-book market. Macmillan, for example, is experimenting with an embargo on frontlist titles from its Tor imprint. And Penguin Random House recently stopped offering public libraries perpetual access, moving to one year licenses (although the publisher says it will make perpetual access available to academic libraries at higher prices). While it certainly does not appear imminent, it is not inconceivable that some major publishers could one day dramatically limit or even pull the plug entirely on library e-book lending, a prospect that makes the legal fate of CDL all the more interesting to watch.

So, could a library have a legal basis for turning an old print copy on its shelves into a digital scan, then loan the scan in lieu of the book? Maybe or maybe not, observes Jonathan Band, a lawyer for the library community. While critics like the AAP have taken specific aim at a 2018 “White Paper on Controlled Digital Lending of Library Books,” which offers a legal framework for CDL, Band says there is in fact no consensus in the library community on CDL, nor do the major library associations have a position on the practice.

“I suspect there is a diversity of views even among CDL supporters about exactly what fair use allows,” Band said, speaking only for himself. “My sense is that far more librarians see CDL as appropriately applying to books that are not available as e-books, and likely never will be available as e-books—such as older, out-of-print scholarly monographs that are rarely circulated, and take up valuable shelf space. In other words, different librarians have different views on what problem CDL is intended to solve—the high cost of library e-books, or the high cost of storing rarely circulated books in accessible stacks.”

Notably, in December of last year Band published a paper on the Library Copyright Alliance website arguing that libraries engaging in CDL should revisit their legal foundation in light of the recent appeals court decision in Capitol Records vs. ReDigi.

While Band’s paper acknowledges that CDL as practiced by libraries and other nonprofit archives differs in significant ways from ReDigi's business (an upstart firm that sought to create a commercial resale market for iTunes files, but was shut down by the courts) “libraries,” he concluded, “cannot ignore the long shadow cast by the [ReDigi] decision.
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