Author: Stephen Beemsterboer
Abstract: For more than a decade, the Internet Archive has been collecting and digitizing books as part of its “Open Library” project. The unofficial e-books are made available to the public under a legally untested concept called “controlled digital lending” (CDL), premised on the notion that libraries should be able to lend their books online in much the same way that they do in person. Under the theory, a library may grant restricted digital access to one patron at a time per physically held copy of a book. Once a patron’s access to the book ends, another’s may begin. The process is meant to digitally replicate a physical library loan, and it works just like borrowing an official e-book through a local library. The difference is that libraries typically must pay publishers ongoing licensing fees to lend official e-books, whereas libraries engaged in CDL pay publishers according to the traditional physical model: one single flat fee per physical book acquired. Since publishers have near-plenary control over the terms of official e-book licensing arrangements, they are able to extract payments for such lending at rates far in excess of what libraries pay to acquire and loan physical books in equal measure. Naturally, publishers are not thrilled by the prospect of CDL undermining the e-book cash cow.
Even so, and despite decrying CDL as infringing and illegal year after year since its inception, no publisher had been stirred to legal action until recently. The Internet Archive’s response to the COVID-19 pandemic was the straw that would finally break the camel’s back. Prompted by sudden, near-universal library closures across the country and the world, the Internet Archive temporarily departed from the strictures of CDL, deciding it best to allow an unlimited number of borrowers to access its digitized books at the same time. The justification for the move, an initiative dubbed “The National Emergency Library,” was to help restore access to an untold number of physical books that were now locked away and rendered indefinitely inaccessible to the nation’s library patrons (having in mind especially those with pressing academic needs). In response, four of the world’s biggest publishers brought suit to shut down the emergency operation. Swept up in the publishers’ assault on that emergency action was the now-well-established concept of CDL itself. Thus, while the National Emergency Library was short lived (at only 12 weeks of existence), it ushered in what is set to be the moment of truth for CDL.
This article explores the legality of both the National Emergency Library and CDL generally. (Though the concepts are related and certainly muddled together throughout the publishers’ complaint, the two, it must be stressed, are distinct.) The article argues that each can comfortably fit within the framework of “fair use,” the legal doctrine through which courts can ratify conduct that would otherwise constitute copyright infringement if the law was applied literally. As for CDL, its proponents have long invoked the “first sale” doctrine as a legal justification (it is the legal concept that allows libraries to acquire physical books and lend them without any sort of licensing), and the force of that analogy is rather compelling in the book-lending-turned-digital context. That rationale is explored in greater depth here, weaving in additional fair use concepts that flow from Supreme Court and Second Circuit precedent to show that a court need not break any new ground to rule that CDL is fair use. The analysis also takes a closer look at how the economic arguments advanced by CDL detractors are grossly overstated—if not flat-out wrong—and most of the publishers’ purported harms are not only chimerical but wholly irrelevant to the question of fair use.
As for the National Emergency Library, the analysis draws on the “public necessity” doctrine of tort law to illustrate that the Internet Archive’s move was not all that radical or beyond the pale. Paired with the singular nature of the circumstances, the immense social utility of the endeavor, and the minimal (or illusory) economic impact it caused, the National Emergency Library can just as rightly be deemed a fair use. The legal analysis of both concepts is rounded out by a criticism of the Second Circuit’s 2018 ReDigi opinion, which many CDL detractors have pointed to as foreclosing a fair use finding for CDL (and presumably the National Emergency Library by extension). While that decision does not foreclose (and, indeed, may actually support) a fair use finding for CDL and the National Emergency Library, it stands as an unfortunate testament to the wayward direction of fair use jurisprudence in recent years. In challenging ReDigi on the points it got wrong, an argument is put forth that correcting course would only further strengthen the already-sound cases for CDL and the National Emergency Library.
[Note: This version contains corrections made subsequent to the article’s print publication, but the substance and page numbering/breaks remain the same.]
Citation: Beemsterboer, Stephen, Fahrenheit 2020: Torching the Internet’s Library of Alexandria at the Height of a Global Pandemic. 2021 J.L. Tech. & Pol’y 101 (2021), Available at SSRN: https://ssrn.com/abstract=4037768
