Hi all,

I thought I should respond to a few points in Janice’s post – don’t want to get into a heated debate but did want to give some history of CDL and response to a few points below.

The legal argument for CDL really originated with Michelle Wu, the head of the law library at Georgetown University who wrote about it back in this paper in 2011. She and a few others of us latched on to the idea and tried to develop it further – Michelle in a series of a papers here and here, and then Kyle Courtney (Harvard Library) and I wrote a white paper outlining the full set of arguments and risk considerations in 2018.  All three of us are librarians with legal backgrounds – none of us are “tech entrepreneurs.” I  guess I should only speak for myself, but I wouldn’t describe myself as much of a tech entrepreneur “supporter” either…

As far as the reasonableness of the approach, I understand views can differ on the scope of fair use, but I do think it’s important to say that fair use most definitely does apply to exercises of the distribution right, and also that principles of exhaustion have long been flexibly applied in ways that go beyond what we’ve recently seen in some rather technical rulings by some US courts. A good article about early US “common law” approaches to exhaustion and the broader principles they identify (almost all cases preceding the seminal Bobbs-Merrill v. Strauss case) is here.

To be very clear to all, we don’t have a fair use case squarely on point that addresses controlled library lending of digitized books, so for now we are making analogies to other fair use cases and the principles they articulate. Fair use is a fact intensive inquiry, and so even then, how a court would treat IA’s implementation of CDL under fair use as compared to other implementations (e.g., how HathiTrust is providing access right now under ETAS) may differ. But just because we don’t have a case directly on point doesn’t mean that the use isn’t permissible. That’s not how fair use or US copyright law works (thankfully!). Although there are lots of problems with US copyright law, one of the virtues of our system has flexibility built in to accommodate new types of uses. Please excuse my lengthy block quote but I think this statement from the Sony v. Universal Studios (an important Supreme Court case about the legality of home video recording technology) is helpful in thinking about how courts should should approach new technological uses:

“From its beginning, the law of copyright has developed in response to significant changes in technology. . . In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart's exposition of the correct approach to ambiguities in the law of copyright:

"The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. `The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, `lie in the general benefits derived by the public from the labors of authors.' [citations omitted] When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose." Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975) (footnotes omitted).

Finally, the CDL analysis I describe above is entirely based on US law, which is very different in many respects from copyright law of other jurisdictions. This includes some notable differences between the “public distribution” right and the “making available” right  you see elsewhere (see this 2016 US (c) office report, with some explanation).  I am far from an expert on interpretation of the EU InfoSoc directive and its application to ebooks or digital lending, but I would encourage those interested in how libraries operating under that directive might lend digitally vs. how more general digital distributions might be accomplished to compare the Tom Kabinet case Janice cites (about digital “making available” generally) to the Vereniging Openbare Bibliotheken case (focused on digital lending of library materials).

Dave

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Dave Hansen
Associate University Librarian for Research, Collections & Scholarly Communications

Lead Copyright & Information Policy Officer
Duke University Libraries
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919.668.4451 (o)

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