[HugThem]

Have they been sued over digital lending in general or because they lent out more digital copies then they owned physically?

Either way, I think that there is no legal "digital lending". What makes people buy things is that they can not get them for free easily. Copyright is there to benefit the author. It puts a certain burdon on the consumer: They have to buy a copy. Or - if they want to breach the law - they have to find someone who illegally makes a copy for them.

"Digital lending" would allow the 3rd party to legally make a copy to the consumer. Because bits are not lended. They are copied. That is not how copyright sets the balance between author and consumer.

I would be surprised if the IA wins this.

[jawns]

Hi, I'm an author, so I have a vested interest in copyright being respected.

Are you familiar with the first-sale doctrine?

https://en.wikipedia.org/wiki/First-sale_doctrine

It basically says that once a person buys a creative work, they can do whatever they want with it, including selling it or lending it.

Controlled Digital Lending is a system that basically says, "Let's make the first-sale doctrine for digital books work the same as it does for physical books."

So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so).

Note that while the library patron gets to borrow and read the work for free, the library has already paid for the work, so it is not as if this erodes copyright any more than it does for print books.

[chadash]

> So, a library purchases a digital copy of a work. Then it lends out that copy, and until that copy is returned, it does not lend out any other copies of the work (even though it is technically possible to do so).

The issue is that IA decided to forgo the rule that they won't lend out copies of the book until it gets returned and instead decided to lend out as many copies as they wanted at a time.

[jawns]

Yes, I agree with you, and I think IA's uncontrolled digital lending was a gross violation of copyright.

I was just explaining the Controlled Digital Lending system because the person to whom I was responding was saying that all forms of digital lending were problematic.

[gamblor956]

This case isn't about the IA's Controlled Digital Lending program, which is a thing most US libraries already do, and in fact did long before the IA launched their own CDL library program.

This case is about the IA's National "Emergency Library" which was uncontrolled lending, which is not a thing covered by the first sale doctrine or any exemptions provided for by copyright law.

[nybble41]

> … Controlled Digital Lending program, which is a thing most US libraries already do …

No, what most libraries do is buy separate (and more expensive, and more restricted) licenses for lendable digital copies of certain works–not everything in their archives is available digitally. The IA's pre-COVID CDL program represented a significant step forward in terms of treating 1:1 digital lending of scans of physical works as equivalent to physical lending.

> … National "Emergency Library" which was uncontrolled lending …

The controversy is primarily over the mostly controlled National Emergency Library, which wasn't quite as controlled as what they were doing before but still had DRM and limits on the duration of the lending. Some few works may have had more copies checked out at a time than the IA had physical copies in their inventory, yes. Consider this an example of time-shifting. The borrower doesn't get to keep the copy, they just get it a bit earlier without waiting in line. On the whole I'm certain the average number of copies per work would have been much less than one, even without considering physical copies languishing in other libraries that were inaccessible due to COVID.

This case, however, is objecting to both the NEL and the previous CDL program. The IA is obviously going to focus on the claims regarding CDL, where they have a stronger defense, while the publishers' propaganda is all about the NEL since that wins them more sympathy.

[HugThem]

My point is that you cannot "lend" bits. Nor can you "return" them.

The meaning of "digital" is that the original never moves. Otherwise it would be "physical".

[webmaven]

> Have they been sued over digital lending in general or because they lent out more digital copies then they owned physically?

The publishers are suing over both, though the lawsuit was rather obviously prompted by the latter (ie. The National Emergency Library).

Meanwhile, the IA is pretending (or implying) in its public statements that the lawsuit is only about CDL in general and eliding or minimizing the role the NEA had in poking the publishers hard enough that they pulled the trigger on this lawsuit.

It shouldn't be particularly surprising, given the adversarial nature of the court system, that the publishers, once they decided that the NEA gave them sufficient ammunition to prevail in court, would decide as a tactical matter to tar CDL in general with the same brush. I mean, why wouldn't they make their claims as broad and expansive as possible?

Nor is it surprising that the IA is desperately trying to walk their misstep back with oh-so-careful statements without actually acknowledging that the NEA was a bad move on their part.

What is surprising is that the IA so readily handed the publishers this pretext in the first place.

[coffeefirst]

True. And the tragedy is had they actually tried to raise the money to buy all the books they needed, they probably could have kept waitlists to nearly zero and avoided this whole situation.