I'm also an author, though not represented by one of the parties. My personal reaction was that the "uncontrolled" digital lending was still very controlled. It was media-constrained (some patrons complained about this), time-controlled, and overall a far cry from the idea of just giving books away in what most would view as an "uncontrolled" fashion.
For this reason I also think use of the "uncontrolled" term is unfair, disingenuous, and even does a disservice to the public at large. It further propagates the myth that loosening already-strict controls is the same as having no controls at all.
It 100% wasn’t. IA after the fact tried to justify their uncontrolled lending by saying they were lending out copies that were owned by the shut down libraries all over the country.
First, nobody gave them ownership of those copies.
Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification).
'After the fact' may be of only limited legal importance in assessing the relative values being weighed in the case.
Let's say that for book X, IA held-in-reserve 2 copies. And at the peak of the "Emergency Library", they never loaned out more than 10 total copies.
I'm sure publishers would allege: "You created 8 net copies! Pay us!"
But then 500 physical libraries who are sympathetic to the IA show up, and say: "Amongst us, we had 1000 idle copies of X trapped on our shelves. We wish we could have done the same sort of 1-for-1 lending IA did, to help the nation in its hour of need, but we weren't set up for it, and couldn't throw it together with limited resources during mandatory-closure orders."
"So, as soon as we heard about IA's program, we endorsed it & recommended it to our physical patrons. As far as we're concerned, we delegated the right to loan our copies to IA, including retroactively."
"No net copies of X were created. Rather, if there had been no pandemic emergency forced closure of physical libraries, our copies of X would've been loaned out for a total of 40,000 library-patron-days. None of that happened, but IA's emergency lending managed to reclaim, according to their exact usage numbers, 5,277 of those days-of-use for students, scholars, and citizens. Less than 15% of the pandemic-destroyed-value."
"Now, publishers are trying to profit off the pandemic, by not only having collected their payments for all those idled books, but collecting a windfall of extra purchases, and/or damages, from a non-profit library that was just trying to offset massive pandemic losses in a technologically efficient way."
Again, You’re ignoring the fact that >90% of libraries already have controlled digital lending programs. Libraries went through the effort to get there legally. IA ignored the processes and rules and just distributed essentially pirated copies.
Over 130 libraries endorsed lending books from our collections, and we used Controlled Digital Lending technology to do it in a controlled, respectful way. We lent books that we own—at the Internet Archive and also the other endorsing libraries. These books were purchased and we knew they were not circulating physically.
Do you have to have ownership to lend out an item? If my friend owns a book and lends it to me, can I not lend it out to someone else during the period I'm expected to have it? I would expect what matters is who has control over the book at that specific time (in addition to any constraints put on the lending at the time it happened).
That could have been what happened. Their example didn't say they got their friend's permission prior to lending whatever was being lent to them. Even if it's after the fact, as long as they don't lend out too many copies they won't exceed what supporting institutions already have.
I think people are missing the distinction between what you are saying happened and the theoretical situation I was noting. I said lend out something someone lent to you, you are saying they didn't actually get lent anything, they lent out something they weren't yet lent.
What you're alleging they did is equivalent to someone going to their friend's house and taking something of theirs to lend to someone else without asking them. I agree that if that's an accurate assessment of what actually happened, it's a lot less defensible.
Interestingly, if you consider any physical thing, in none of those scenarios does the manufacturer of the thing that was lent or not lent—with or without permission—have any say-so with regard to the lending of that thing.
That's because we confer and infer specific rights in different situations there. Selling something confers ownership, and lending something confers right to use, possibly limited by stipulations at that time. Re-lending something may or may not be allowed depending on what the original lending agreement was. In the metaphor, limiting in this way is like your friend saying "here, but don't let anyone else use it, I trust you, not them" when it's lent. For businesses doing some sort of lending it's generally more complex and a contract (like what you sign when renting a car), and may or may not cover usage by other people.
I have no idea what limitations, if any, are put on the lending of digital goods by law or by the specific terms of IA, or the terms the other libraries in question offer.
> In the metaphor, limiting in this way is like your friend saying "here, but don't let anyone else use it, I trust you, not them" when it's lent. For businesses doing some sort of lending it's generally more complex and a contract (like what you sign when renting a car), and may or may not cover usage by other people.
Sure, but at no point does the producer of a physical object that is being lent get a say-so in the agreement between my friend and me, or the contract between a lending business and me.
In the car rental metaphor, it'd be like Ford suing Hertz for lending me a Focus that Ford already sold to Hertz.
If the people you borrowed from say its OK after the fact then yes it is OK.
If I borrow a neighbours defibrillator, without asking, to save their child it would be insane for the manufacturer of the defibrillator to sue me for not buying my own defibrillator. While in theory the neighbour could object to me borrowing the defibrillator without permission, that does not appear to be what happened. Based on IA's statements it appears that libraries are saying after the fact that they were happy for their copies of books to be loaned by IA.
I would assume from their actions these publishers hoped to make a windfall on book sales when people were no longer able to access libraries and they saw IA's actions as attacking this potential profit. I can't think of any other reason why they would peruse their current course of action.
I think "media-constrained" means you could only read the books through the Internet Archive web reader, or an encrypted version only readable in Adobe Digital Editions. You couldn't just download a plain PDF or EPUB to read anywhere and share with friends.
"Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification)."
Most libraries' digital lending is completely separate from their physical lending or from the Internet Archive's scanned book program. Those digital lending systems have no relevance to this case.
> Second, most libraries already have legal digital lending systems and so their digital stocks were going out too (which also negates IAs after the fact justification).
IIUC libraries buy separate digital copies for digital lending. IA's justification is that they were providing a substitute for the physical copies which are now sitting unusable. It might be legally suspect but it's not an illogical position.
By media-constrained I'm referring to the fact that, as far as I could tell, once you checked out one of these books, there was no way to grab a PDF and run. There was no way to grab an EPUB and bob's your uncle, you're in Kindle or iBooks and reading your text. This constitutes an easily validated, qualitative, experiential difference from what parties to the case are implying. If this isn't the case, let me know.
That's not what the publishes are implying at all. They could care less about the technicalities of whether the IA copies were ePubs or Mobis or whatever.
The publishers are saying that, regardless of the form of media, the IA engaged in uncontrolled digital lending, meaning that they lent out more digital copies of books than they actually owned, digitally or physically (or that were lent to them by their so-called partner libraries either digitally or physically). Because they did not actually own or possess the copies underlying these loans, they were required by copyright law (in the US and the EU) to either acquire more physical copies or to license more digital copies.
Controlled Digital Lending is a well established term meaning one physical copy for each copy digitally lent. This lent more than the physical copies, so it was “not controlled digital lending”. There is little linguistic difference between “not controlled” which is awkward and “uncontrolled.”
Uncontrolled does not have to mean zero restraints. The word never meant that. Especially in a well defined context where controlled has precise meaning (and that meaning is not “every constraint”). Neither word need mean the absolute extreme.
There is considerable difference between "uncontrolled" and the status of digital books lent by the "national emergency library". For one thing, all of those copies have expired and are unusable to either the person who checked them out or anyone else without illegal actions by those people. To argue that these digital copies are, or were, "uncontrolled" is ridiculous and quite inverts the meaning of "uncontrolled".
Ironic to me that it is completely possible to make pdf copies of a physically borrowed book, and at least in academia making physical copies of chapters of books was extremely common and one of the primary uses of photo copy machines.
Yeah I was going to make a similar point - many libraries use services such as Hoopla and Overdrive for digital lending. Hoopla has been a god send for me during quarantine.
The internet archive was expressly using "Controlled Digital Lending" [0], a term that they subscribed to that seems to clearly mean "no more copies lent out a time than the number of physical copies owned". They decided to abandon this limitation. The opposite of controlled is uncontrolled, so seems like a fair term to me.
That an opposite term exists does not mean that abandonment or a shift away from the original term mandates a shift to the opposite. If my computer stops "running very fast," that doesn't mean that it is now "running very slow."
In this way, "uncontrolled" is not a fair term; rather it seems to be used for a specific, possibly unfair purpose by a specific side in this argument. The fact is, IA had specific, qualitatively-controlling controls on their lending, and anyone who checked out one of the books could see exactly what that meant. Nuances are important here.
They aren't using the word "controlled". They are using "controlled digital lending" which has a specific meaning that the Internet Archive subscribes to, which they summarize as:
> Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.
So what they are doing definitely is not "controlled digital lending", by their own definition. At best, it's semi-controlled, but the real essence of the "control" is the number of copies, so "uncontrolled" seems fair.
This implies that their definition begins and ends with that paragraph. I would tend to go to them and ask them to verify that this limiting definition was exactly what they had in mind (as opposed to a simple blurb); that additional lending controls are in use by IA, including controls which are not explicitly written into that paragraph, is something that is easily validated online.
If they do agree with you that the paragraph you pasted is their end-to-end definition of "controlled," that means they haven't yet incorporated these other controls into their definition, and they definitely still can and should.
There's no singular time limit or definite requirement to define such things in this case, and IA have engaged lots of controls, from HTTPS and authentication on up to content-level media and time controls.
That's not just a blurb that someone typed accidentally. It's an official position statement that they signed onto and the definition is also reiterated in the accompanying white paper [0].
Sure, they can change their position. But A) I can't go off of what is potentially in some stranger's head and B) they would be redefining the term.
edit: I hear where you are coming from though. I agree it's got some "control", so you don't like the term "uncontrolled". But I think we probably agree that it isn't "controlled digital lending" even if it is "controlled" to some extent.
In this case, "uncontrolled" digital lending is the appropriate term, because the IA admits that they removed those controls as part of the National "Emergency" Library program.
Also, why does it matter if 130 libraries said they were okay with the CDL program, since that's not at issue here?
Library CDL programs were still online and functioning the entire time. Only the physical facilities were closed.
"Library CDL programs were still online and functioning the entire time. Only the physical facilities were closed."
As far as I know, most public libraries' electronic lending programs are using something similar to Rakuten OverDrive and are limited to books published in electronic editions and then leased by the library systems. Do you know of any libraries other than the Internet Archive that make scanned copies of physical books available?
There is a 14 day time limit, but you can renew when that's over, with no limitations based on who else has a copy of the book. So it doesn't seem like a very meaningful control, certainly not in the eye of the copyright holder.
You could now try, if the DRM allows it, and the Internet Archive only temporarily during the lockdowns, through the DRM, allowed more than one person to read the book. That is, you could have had it for 14 days, but now you just couldn't renew it anymore unless nobody reads it.
What would you consider to be the correct term to use? I've seen a lot of posters arguing with the term "uncontrolled," and I agree that IA was utilizing some type of control when lending out their books. However, "controlled digital lending" is a very specific form of digital lending that most (if not all) libraries use for lending their digital resources [1].
I guess the correct term to use would be something along the lines of "lending that doesn't follow the legal definition of controlled lending" or something along those lines, but that is a somewhat unwieldy phrase to use as a part of most posts.
Controlled in the context relevant to this case relates to the number of copies, not the duration of each lending term. It doesn't matter how long the lending term is if you lend infinite simultaneous copies.
The publishers concern is exactly that IA could do that, since the number of copies they were lending wasn't actually tied to anything they owned or were licensed to lend.
> The opposite of controlled is uncontrolled, so seems like a fair term to me.
No longer strictly doing something does not imply it's opposite.
For example, the opposite of help is harm, and no longer helping something does not imply you are harming them, does it?
These terms are the extremes of a spectrum. Noting that you are no longer on one extreme of a spectrum does not immediately imply you are now at the other extreme.
Harming or helping someone is a spectrum with a neutral point. You can help someone. You can harm someone. You can help someone more or help someone less. Or you can neither help nor harm someone. Because there is that neutral point, when we say someone stopped helping, there is a state other than harming in which they can be, so harming is not implied (although it still may be the case).
Control of a variable—in this case the number of copies lent—is strictly binary. There is no neutral state in which the variable can be neither controlled nor uncontrolled.
> Control of a variable—in this case the number of copies lent—is strictly binary. There is no neutral state in which the variable can be neither controlled nor uncontrolled.
This is the crux of the point. Control over a variable is not what's in question. Control over many variables is, some of which were controlled and some weren't. In that respect, if you go from a controlled process where the variables in question are all controlled to one in which some of them are, it is not now "uncontrolled", it's partially controlled, it's also partially uncontrolled. There is less control, but it doesn't make sense to call it uncontrolled where there is still control over some variables retained, and we're still using the same context which applies to the same set of variables.
Yes, but in CDL the relevant variable is the number of copies lent. Changing, for instance, the duration of lending wouldn’t change whether you were practicing CDL if you continued to loan digital copies only on a 1:1 basis.
Arguing otherwise is a bit like saying discrete mathematics isn’t discrete because we can represent the number one by a line of arbitrary length. That’s strictly true but has nothing at all to do with the actual definition of discrete mathematics.
> Yes, but in CDL the relevant variable is the number of copies lent.
No, CDL very clearly outlines 6 different criteria by which it should work.[1] One of those criteria is:
limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio);
It does not state 1:1, just that some ratio is maintained, and even if that one criteria were to be ignored, there are 5 other criteria just as important to the process, such as ensuring that each digital copy goes to a single person, and that the digital copy prevents additional copying, and that it's limited by time.
Whether they qualify for the moniker of CDL when not following one of those six criteria is debatable, but notably it's not what we're debating here, which is whether it's accurate to call what they did "uncontrolled" because it was called controlled previously (even if that's a name library marketing made up for this). Given all the other controls in place (likely every other criteria listed for CDL), I would say it definitely was not "uncontrolled".
> No, CDL very clearly outlines 6 different criteria by which it should work.
You've not made any counter claim here. You've left me guessing which criteria you mean to include some type of control, so I'll go through them all.
ensure that original works are acquired lawfully;
This isn't really about controlling anyone but themselves and is also part of what did not appear to happen in the NEL.
lend each digital version only to a single user at a time just as a physical copy would be loaned;
This isn't meaningfully different than maintaining the ratio.
limit the time period for each lend to one that is analogous to physical lending; and
In the absence of maintaining the ratio, the length of duration is meaningless, since the same person can just check out the book again.
use digital rights management to prevent wholesale copying and redistribution.
Again, without maintaining the ratio, what control does this achieve?
>> limit the total number of copies in any format in circulation at any time to the number of physical copies the library lawfully owns (maintain an “owned to loaned” ratio);
> It does not state 1:1, just that some ratio is maintained,
This is a difference without distinction. Sure, they could be loaned at a ratio less than 1, but they cannot, by definition, loan at a ratio greater than one.
> Whether they qualify for the moniker of CDL when not following one of those six criteria is debatable, but notably it's not what we're debating here, which is whether it's accurate to call what they did "uncontrolled" because it was called controlled previously
These are not separate debates. There's context behind the use of the term 'controlled'.
> In the absence of maintaining the ratio, the length of duration is meaningless, since the same person can just check out the book again.
That only makes sense if you assume the ratio is infinite if above zero. This matters in any case where the ratio is not infinite.
> Again, without maintaining the ratio, what control does this achieve?
Combined with limiting the time period the lending is allowed, which you conveniently left out, it's controls the scope entirely. Even if you allow unlimited copied, you can change that and if the copies are all limited to one week and are cannot be copied by users, in a week you can have effectively reduced number of items lent to zero if you want. Without these constraints you can't. They are integral to the whole idea of CDL.
> This is a difference without distinction. Sure, they could be loaned at a ratio less than 1, but they cannot, by definition, loan at a ratio greater than one.
Sure they can. Their justification for why they believe it's legal does not allow a ratio of above one, but almost all the other criteria still applies when it is above one, and specifically, what the IA did was lend at a ratio above one. Your other points about how stuff doesn't matter if the ratio is one are specifically avoiding this point.
My point is simple. CDL would not work from a legal perspective if there was not some way to limit the time in which the item was lent and prevent copying just as it would not work if there's not a physical copy backing the lending. To say it's uncontrolled because only one aspect of all those parts that make the whole makes no sense.
That's akin to having a dog restrained with a leash, harness and muzzle, and after the muzzle is removed, saying the god is unrestrained. The dog is restrained still, just less so than before. The IA lent books in a controlled manner (an account is required, there was DRM, there were limits on length), it was just less controlled than before, because they did not back each digital copy with a physical one.
That there were clearly some controls in place means that it's erroneous to call it uncontrolled.
Feel free to respond and refute as you see fit, I'll read and consider what you say, but I won't respond on this particular thread anymore. I think we've spend enough time on this that it's unlikely to tread fruitful new ground that will change either of our minds, and we could probably go back and forth on minutia for quite a while.
For this reason I also think use of the "uncontrolled" term is unfair, disingenuous, and even does a disservice to the public at large. It further propagates the myth that loosening already-strict controls is the same as having no controls at all.