CDL Lending/Recent Internet Archive Court Decision

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  Posted by Michael Kirby on September 5, 2024 at 10:32 am

  Hi everyone,

  Hope your semester is off to a good start!

  This might be slightly off topic for this forum, but I thought I might as well ask for some advice re: the recent court decision about CDL lending/the Internet Archive. We just started our CDL program at Kingsborough and I know a couple of other CUNYs are doing it as well. Do you plan to stop your CDL lending?

  Thank you!

  -Michael

   

• Jill Cirasella (she/her)

  Member

  September 13, 2024 at 12:54 pm

  I apologize for not replying until now, and I admit I still haven’t had a chance to read the most recent ruling in full. However, something I do remember is that the original lawsuit against the Internet Archive vigorously argued that the Internet Archive isn’t actually a library. (“Defendant bills its Website as ‘an accredited California State Library run by the non-profit Internet Archive,’ but this branding fraudulently misleads on several levels. The Open Library is not an “accredited library” by any commonly understood definition of those words.”) Given that this was central to their overall argument, I’m honestly not sure to what extent the ruling is a strike against the Internet Archive’s specific CDL operation only and to what extent it’s a strike against all CDL.

  I’m curious if anyone has more information or a fuller understanding of this than I do!

  Also, I’d be very interested to learn about the CDL program at Kingsborough. For starters, what platform are you using? So many questions!

  All best,
  Jill

  • This reply was modified 2 months, 2 weeks ago by Jill Cirasella (she/her).
  • This reply was modified 2 months, 2 weeks ago by Jill Cirasella (she/her).
  Jill Cirasella (she/her)

  Member

  September 13, 2024 at 1:46 pm

  PS: I just read with interest this blog post from the Authors Alliance that mentions some bright spots in the Internet Archive ruling, as well as some issues not addressed by it.
  Beth Evans

  Participant

  September 13, 2024 at 5:34 pm

  Good points, Jill.

  Pulling out the positives the AA sees in the ruling for a shorter read here:

  1.The Court rejected the district court’s conclusion that IA was engaged in commercial use when looking at the first factor of fair use. The publishers argued IA’s lending of digitized books was commercial in nature because IA received a few thousand dollars from a for-profit used-bookseller and also solicited donations on its website. The Court rightly pointed out that if that was the standard, virtually every nonprofit that solicits donations would by default only be able to engage in commercial use. This was an issue we and others strongly urged the Court to address, and we’re glad it did.

  2)  For the most part, the Court focused its analysis on the facts of the case, which was really about IA lending digitized copies of books that were already available in ebook form and licensable from the publishers. The legal analysis in several places turned on this fact, which we think leaves room to make fair use arguments regarding programs to digitize and make available other books, such as print books for which there is no licensed ebook available, out-of-print books, or orphan works. CDL will remain an important framework, especially considering the lack of an existing digital first-sale doctrine.

  Finally, a solution for orphaned works!

  Beth
  Julia Furay

  Participant

  September 16, 2024 at 10:44 am

  Hi, I can share info about Kingsborough’s CDL program (now abruptly put on hold because of the law case, though according to Beth perhaps we can continue?). Our focus for this program was on textbooks which do NOT currently have an ebook available, which is what Beth mentions as well. We have funding for etextbooks and would prefer to purchase licenses where possible (ebooks are SO much easier to use!), but if not, we saw CDL as a good alternative. We’ve wanted to set it up for a year and had so many technical issues that I started calling CDL “The Impossible Dream”. Anyway all of the issues just got sorted out this summer finally.

  So, long story short we have set up CDL through Alma/Onesearch. You create digital representations and attach them to the print book’s bib record. You can set an access policy, which limits users to one (or however many you have in storage) concurrent. We also disabled the download of these materials and created a “closed stacks” location in Alma so these print copies designated for CDL don’t show up in the catalog and confuse people. I don’t believe we restricted access to Kingsborough users only (I think any CUNY user can access them), so you all can try it out if you like with test digital representations we did for our yearbook. Right now we have the loan period set to one day. https://cuny-kb.primo.exlibrisgroup.com/permalink/01CUNY_KB/guoh4u/alma990012253280106129

  Anyway, we were very excited about all of this and actually purchased a number of print copies specifically for CDL, and cut the spines off of some of the textbooks designated for the CDL location to help us scan them faster. But we aren’t currently certain about its future. The good news is that thanks to much help from Allie and Kristen, we can finally offer chapter scan requests for textbooks in Onesearch (we had technical issues there too). So at least we have more remote access than we did, but we had hoped for both options (CDL and chapter scans). Let me know about further questions, it was a whole process to get it going.
  Jill Cirasella (she/her)

  Member

  September 16, 2024 at 5:57 pm

  Thank you for sharing those details, Julia — I didn’t realize there were any CUNY libraries pursuing CDL in Alma/Primo yet! For those of us who are members of the NYS Copyright First Responders group, the October meeting will be about the implications of this most recent Internet Archive ruling — I’m sure those of us who attend will have insights to share after!
  Jill Cirasella (she/her)

  Member

  September 19, 2024 at 4:00 pm

  In my last message, I mentioned that the October meeting of the NYS Copyright First Responders group will be devoted to this ruling and its implications. It was just announced that the meeting will be open not just to members of the Copyright First Responders group but also to our institutional colleagues. So, if you’d like to attend, please send me an email (jcirasella@gc.cuny.edu) and I’ll share the sign-up info with you. The meeting will be Thursday, October 24 at 12-1pm.

  Also, in the meantime, you might be interested in this blog post from Kyle Courtney (Copyright Advisor at Harvard Library and co-author of the original white paper about controlled digital lending) — it’s a long but very interesting read and has a helpful tl;dr section at the end:

  CDL Decision Round Two: The Good, the Bad, and the Ugly and Why There is Still Hope (OR The Reports of CDL’s Death Have Been Greatly Exaggerated)

  PS: We at CUNY do fall under the jurisdiction of the 2nd Circuit Court of Appeals, the court that ruled on this case.