Legal Issues in "Controlled Digital Lending"
The copying and distribution of copyrighted content by libraries present complex legal issues, and although there are existing copyright law exceptions for such library activities (primarily in Section 108 of the US Copyright Law), those exceptions have not formally been amended for digital and online uses. The position statement and white paper on controlled digital lending (CDL) published in September 2018 by Kyle Courtney (Harvard) and David Hansen (Duke) is endorsed by a number of libraries, copyright academics, and other organizations such as the Internet Archive, but should be understood to be primarily an advocacy position, relying principally on a “fair use” argument and some risk assessment. While in the past publishers and libraries have worked together on legislative solutions including a working group on Section 108 in the mid-2000’s, and on a number of pilot e-book lending projects in 2013 and 2014, there was no such “bipartisan” engagement in developing the CDL proposal, and publishers (the AAP) and authors (the Authors Guild) have noted their opposition and disagreement with the CDL position. I will review the legal issues and discuss alternatives and concerns.