Why Your Library Should Be All-In with Controlled Digital Lending

Before we talk about digital lending, controlled or otherwise, let me first elaborate on what I mean by “All-In” here. The term is used in poker, if you’re not familiar with it, for when a player bets everything they have. Poker’s an interesting game, because yes, there’s an element of luck involved, but luck ultimately evens out over time, so knowing the math, how to read your opponents, and those sorts of skills are what makes a successful player in the long run, not luck.

There are times when you can go “all-in” on a pretty cool hand of nothing, and win, by virtue of bluffing your opponents. Fortune favors the bold, in other words. When I say “All-In” with Controlled Digital Lending (CDL), I’m referring to libraries being fully committed in supporting the widely endorsed practice of extending their existing lending policies for the physical realm into digital formats.

I am not predicting, in any way, the demise of material collections. Print isn’t going away. Just look at the resurgence of vinyl records, of all things, as an example of how many of us still prefer, for various reasons, analog formats. To me, the image of Captain Picard reading a leatherbound novel on the beach is quite believable.

During the peak of the hype cycle for Second Life, I recall people saying that everyone working in the library needed to have an avatar in Second Life because that was how we were going to reach people. That prediction was obviously a bit off the mark. So, I don’t mean you should plan to close the stacks. It’s not going to happen, lockdowns excepted. I mean rather to one hundred percent, all the way, get behind this practice, as something we are supposed to be doing, and in particular, something we are allowed to do.

You can check out a paperback book, you can check out a DVD, you can check out a digital copy. It’s all the same. If a library owns a copy, it can lend that copy out, however it chooses. Licensing agreements try to undercut this, but the legal justification (namely the first-sale doctrine coupled with Fair Use provisions), for each of those situations, provided we don’t act as if we’ve surrendered our rights, is still there.

Now, I need to qualify that assertion with a disclaimer, drawing from the boilerplate Reference Desk policy of, “Don’t give out medical or legal advice,” to explicitly stipulate that I Am Not A Lawyer (IANAL). Nothing I’m going to tell you should be construed in any way as a form of legal guidance. It’s solely my opinion, and not my employer’s, either. I’m not qualified to give out legal information.

Moreover, keep in mind that humans aren’t, and have never been, infallible in their laws. Inter-racial marriage was once illegal. Imprisoning Japanese Americans solely because of their ethnicity was once legal. And it’s currently illegal in Georgia for political organizations to give out food or water to someone waiting in line to vote. So, while I’m not calling on us to practice civil disobedience, by any means, it is worth noting that what are now recognized as unjust laws used to exist.

The legal code is also quite fuzzy here. Take it from someone with a law degree. Nancy Sims, the Copyright Librarian at the University of Minnesota, writing about a similar issue, states, “Any public information about US copyright law that implies there are clear yes/no answers around reusing existing work is -not good information-.” Given how it’s not like going 80 miles per hour in a school zone, we therefore don’t want to fall into the trap of being, as Terry Pratchett puts it, “so worried about legal and illegal that you never stopped to think about whether it was right or wrong.”

There are very specific industry guidelines that have been created about what percentage or how many chapters of a book can be placed on electronic reserve, and for how long, or how many times we’re allowed to order something through interlibrary loan before voluntarily paying a publisher extra. All those kinds of self-policing criteria, however well-intentioned, have zero corresponding basis in the actual law.

The only thing we have as a legal precedent are those nebulous factors for Fair Use as defined in the United States Code. No distinction is made between a library lending a print manifestation or lending an electronic version of a work. I can only hope that, should a more concrete set of laws about libraries sharing digital forms of information be enacted, they will more explicitly codify what’s fair, just, and right.

Furthermore, the inherent defect with letting “we could get sued” drive your organization’s decision-making, when there’s a grey area involved, aside from it not eliminating you as a target of frivolous lawsuits, is that anyone can sue you for any reason. Libraries have been sued for hosting drag queen story times. Libraries have also been sued for not hosting drag queen story times.

My experiences with our university’s campus legal and risk management divisions have not been fun. They have forbidden us from doing perfectly legal activities out of what I would call an overabundance of caution. The main problem with this mentality, other than it unnecessarily restricting our mission, is that rights which aren’t asserted have a tendency to disappear.

Not unlike how they fought doomed legal battles against video and audio cassette recorders, a strategic lawsuit has been filed by publishers against a non-profit library practicing CDL. It’s scheduled to start later in the year. This is not the time to quietly stay on the sidelines, however, no sooner than is it a good idea to halt your current practices whenever you’re faced with hollow threats.

Curiously enough, there’s a similar bit of legal over-reach on the part of many museums, and some rare books libraries too, by making spurious claims over things in the public domain. This artifact is from ancient Egypt, so it’s safe to say the copyright term on it has expired, not to mention how it ended up in the provenance of a German museum is another troubling question.

It’s an unfortunate name, but what are called “slavish reproductions” of non-copyrighted things, such as unaltered digital images of old buildings that add no artistic component to the method of capture or reproduction (unlike how a painting of the Acropolis would be copyrightable), you can’t claim a copyright on in those circumstances, meaning that once we re-publish such materials, we need to let our users do whatever they want with them.

Covid is on all of our minds, and it’s not something I want to talk about more than I need to, but with library buildings closing it obviously relates to the topic of digital delivery—along with other supplemental services, such as offering curbside delivery and holding online story times—as a way for libraries to meet the challenges to the mission of delivering content to their constituents.

This health crisis has also brought to light many harsh truths about human nature, including our relative propensity for kindness or selfishness. Another one of those is that, perhaps due to how we’ve evolved, we don’t always calculate risks very well. I got the vaccine, for example, even though I knew there was a non-zero chance it could give me a heart attack. Not everyone, of course, made that same decision.

There are inherent risks in anything we choose to do, even by being complacent and doing nothing. Likewise, any system, new or old, you can nitpick and find faults in. Open stacks are more susceptible to theft. An online presence is vulnerable to hacking and outages. Those aren’t compelling enough reasons for not having them.

Consider how many libraries were too slow in closing pre-emptively when the pandemic first hit. Aside from doing a better job at protecting our workers and our users, we need to be a little more proactive in our thinking, looking out for the next big thing, anticipating change, being open to novel ideas, willing to try new methods, and accepting imperfect iterations of progress.

The future is coming, whether or not we get used to it. Yet we seem to be hard-wired to view change as a threat, no matter what, even though the bigger danger might actually be in not adapting and thereby becoming obsolete or extinct. In many libraries, it’s easy to decide to do nothing, whereas launching a new service is an uphill battle, and requires sticking your neck out.

We can be hung up on process too much, particularly when a better means to an end comes along, and “that’s not how it used to work” is presented as a somehow always valid objection. I’ve butted heads with a fair number of colleagues over the years who in my opinion didn’t have the best service mentality, were overly reverent of the status quo, or otherwise came across as a little too eager to say no to new proposals.

Explaining how virtual reference extends our reach to online learners was for some a tough sell. We missed out on having 3-D printers in the library solely because a library administrator thought they would smell bad. Back when we had coin-operated photocopiers in the building, the head of circulation at the time was quite passionate about asserting their belief that giving out change to patrons was against state law.

Instead of pouring over statutes and interpreting them to justify what we’ve already decided, I think the CDL issue is one where, independent of whatever man-made laws can be found on the books, we have to ask ourselves, does it adhere to the purpose of why libraries, in this culture and in this society, have the rationale to exist. And shouldn’t it be imperative that we retain the right to circulate bought items, regardless of the medium used? Because, if not, how do we survive, in a world of pay-per-click licensing, when we’re trying to meet user needs by democratizing information and spreading knowledge?

There’s an old philosophical thought experiment which has you imagine an alternate universe with conditions very similar to our own, where there is in fact a Twin Earth, but with a few pivotal differences. In recent years, as the challenges facing libraries have grown (thanks largely to the mostly unchecked expansion of capitalism and fascism), I’ve read with increasing frequency people commenting that on a Twin Earth where libraries did not exist, it would be nary impossible to successfully create those organizations, due to the prevalent opposition such a concept would face.

Back on this planet, it’s vital that libraries maintain their relevance and continue their mission. By this, I mean to keep preserving and spreading information, protecting patron privacy, plus all that other stuff in our code of ethics and what we learned is important in library school. As digital forms of information become more ubiquitous, if we accept them with strings attached which curtail our lending rights, it would be a surefire step towards evolving into that Twin Earth where there’s no such thing as libraries.

Controlled Digital Lending is, to take the words one at a time, when a library lends items in a digital format through any sort of mechanism that somehow restricts access to patrons. CDL involves granting access to digitized forms of purchased or in another way legally appropriated physical holdings under certain conditions.

What this usually means is a one-to-one relationship between the number of copies you have sitting on the shelf or in storage being unused and the identical number of your patrons allowed to be actively viewing their electronic counterparts through a digital checkout system. Although the libraries currently doing CDL are only circulating books, the principle is the same for all types of holdings.

You may actually already do this at your library, albeit through a vendor such as OverDrive that adds a substantial mark-up to your costs. CDL is basically a library acting as its own OverDrive, or another e-book vendor that throttles access to a limited number of simultaneous users.

The Internet Archive uses CDL with Adobe’s Digital Rights Management software for checking out its scanned titles to registered users. The HathiTrust Digital Library offers their own Book View application for authenticated patrons to control circulation. Ex Libris’ Alma platform includes a roadmap for adding Resource Sharing features that can be modified to manage patron waitlists and fulfill requests. An Open Source solution called Project ReShare is also in development. Some interlibrary loan and electronic reserve management systems can be repurposed to fulfill this role as well.

Although I’m not going to focus much more on the technical logistics, I do want to at least acknowledge that labor is involved in digitization, responsible storage, and document delivery. There are concerns with some of these items and practices that I therefore want to discuss.

First of all, certain choices have to be made with what to digitize. We can’t scan everything, after all. There’s too much of it, even if we limit ourselves to the library’s unique materials. It’s a good idea to do so, because the Internet Archive offers CDL for monographs which they own to patrons from libraries in possession of the same editions; there’s no need to expend energy scanning duplicate copies when their digital versions already exist.

We have, in our physical archive collections, the signed letters of hate mail that were written to civil rights leaders during the 1960s in Milwaukee. The call was made not to include those with what was digitized. Although, we do have the anonymous letters in our digital collections.

We also have some rather dated content, and I don’t only mean the fragile antique world maps that aren’t entirely accurate. Some of our older yearbooks, for instance, contain images of students in blackface. Those continue to be presented as accurate and historical records of the original publications. We are making a judgement in balancing the preservation of information against any potential harm which doing so might cause.

It’s about a year old, and I believe it’s yet to be used (while on the other hand, we do receive a steady stream of letters informing us that, hey, that unidentified person in one of your photos is my Great Aunt Ethel), but we do have a form that anyone can fill out to request that we take stuff down.

This relates to the whole book banning debate and the recent flurry of challenges to materials, particularly about racism, that public and school libraries have received. The idea that librarians should have a right to decide what they select and keep in their collections is under attack by a coordinated campaign.

This also raises a key point about responsible archiving. As publications are revised, retracted, censored, withdrawn, or otherwise altered for future editions, keeping those old copies safely intact cannot be accomplished with any degree of certainty by handing over the responsibility for their preservation to publishers. This vulnerability is evident in the existence of “orphan works” whose rights holders are unknown.

If you are looking at the practice of CDL from the perspective of a copyright holder, you may be wondering, wait a minute, what’s to stop a patron from, when they do have access to a library title, somehow copying it, to either keep for themselves past their apportioned time, or worse yet, share beyond the library?

Surreptitiously bypassing printing limits, taking a series of screenshots, recording it on your phone, and a number of other similar methods can be imagined to circumvent the restrictions placed on any content on any platform in any format, from JSTOR to Netflix to bookstores.

Without promoting piracy, we can’t plug every conceivable loophole here. Think about how your library probably has photocopiers in the building, even though those devices might be, in theory, used to violate copyright laws. Likewise, what’s to stop patrons from ripping the music CDs that they check out at home? Not a whole lot, honestly.

It’s simply a consequence, and an acceptable trade-off, from us not having chained books anymore. It isn’t our job to be the police here. We’re supposed to be facilitating access. It’s our right to exercise. No further consent from authors is required. We are not responsible for the actions of our patrons, as those Title 17 stickers say.

This doesn’t mean it’s okay to go ahead and throw your copyrighted collections on the open web. We should practice due diligence to protect rights holders and act in good faith to prevent the unlawful redistribution of content, but anyone who’s dealt with those annoying “Are you a robot?” tests knows how the balance between ensuring information security and becoming a nuisance to legitimate users can at some point place an undue burden on the people who don’t deserve it.

One line of thinking against the legality of CDL relies on the bad faith argument that a web browser displaying a file delivered from another server constitutes a criminal act because a pirated copy is somehow made in the process. This is akin to claiming that using a hearing aid to listen to an audiobook makes one an illegal broadcaster. I’m also reminded of the dubious allegation that viewing the source code of an unrestricted webpage is against the law.

Electronic book pricing structures are ridiculous, especially for libraries. They rely upon a contrived scarcity for digital goods and attempt to undercut the rights of ownership. It is no coincidence that the people who have objections to CDL, either on principle or by making convoluted legal arguments, do not have a problem with the obscene markups prevalent in the e-book industry:

Data from Can my students read my books? : Guidance for academics on negotiating contracts with publishers

As a corollary, I tell you that if you do have a problem with what I’m showing you here, you should consider actively supporting Controlled Digital Lending as an antidote, essentially, to these sorts of pricing practices.

Many publishers include stipulations in their standard electronic licenses that are designed to do away with traditional library services. They say we can’t download an e-book and place it on reserve for an entire class, we can’t use copies of articles from a full-text database to fulfill interlibrary loan requests from other institutions, and so on. As with everything where vendors are concerned, those kinds of clauses are negotiable.

It’s also worth considering if those agreements are even enforceable. If I buy a ticket to a baseball game and the back of my stub claims, “You cannot sue us for any reason,” that may very well be true if I’m not paying attention and get hit by a foul ball, but there remain certain illegal actions that stadium personnel could take for which I definitely would have a valid case, regardless of what’s written on my ticket.

One of the first contracts for digitizing books, between Google and the University of Michigan, is posted on the umich.edu website. Note the running footer of “Confidential” and the assertion that the terms of the agreement are confidential and proprietary. That was an over-reach. The University of Michigan, as a public institution, is subject to sunshine laws, which if I recall clearly had something to do with this document being declassified.

Likewise, courts have ruled some contracts to be unenforceable, ipso facto that a few of the rights you have cannot ever be ceded. Could such a line of thinking apply to how libraries might have an overruling moral obligation and legal right to lend their stuff out, regardless of how it’s licensed? IANAL, so I can only tell you how a lawsuit asking the judge to make such a determination would be decided if I were on the bench.

In the latest novel by Andy Weir, an interstellar spaceship built for a mission to literally save humanity is as a precautionary safeguard equipped with a databank containing all of our published scientific knowledge. This action prompts a court case brought by an alliance of intellectual property holders against the project for copyright infringement. I found that situation laughable yet also eminently plausible.

Open Access (OA) is, when done right, another framework for combating the over-commercialization of information. If there’s a legal copy of something already available on the web, not behind a paywall, we obviously don’t have to scan a print copy and put it in a patron-authenticated access system.

Government documents are an example of this, as long as they remain online. Open Textbooks are another great one, because when you have groups of students trying to obtain the same title, they alleviate having turnaways resulting from requiring any manner of simultaneous user access limits. Open pre-print servers, digital archive collections, and institutional repositories, when their contents aren’t embargoed, and also provided you’re harvesting the records to aid in their discovery, are good too.

Our IR, as a public research university, contains all our doctoral theses, at least since the 1990s, that anyone can download in full. With a handful of exceptions: dissertation authors do have the right to block access for a time. This usually has to do with them wanting to make sure they get their first book deal or patent, and it’s not something I’m a fan of, but the university allows it.

A practice that I am a fan of, and it’s quite rare, because I don’t think it has ever happened at UWM, is dissertation authors withholding the rights to their work when it comes to ProQuest Dissertations grabbing a copy. This is a database platform, like Turnitin and other anti-plagiarism services, that solely exists by virtue of it being given an entire institution’s scholarly output, for free, and then proceeding to sell it back to those same institutions. It’s downright bizarre, when you think about it, how these companies are basically printing money.

Unfortunately, there are flavors of Open Access marketed by for-profit publishers that I wouldn’t even call Open Access. Case in point: the journal Nature charges authors €9,500 to publish an article in their online publication and have it made available to non-subscribers.

That’s a lot of money! Granted, web servers cost time and money to operate dependably, but not that much. Remember, these are usually commercial journals which are often run by volunteer editors. In the case of scholarly societies, those fees are obviously being siphoned elsewhere. There are authors out there who have the privilege, perhaps the vanity, and maybe even the gullibility to fork over that much money. There’s a resulting sampling bias involved concerning which articles are unpaywalled.

As do many academic libraries, we subsidize those fees through an Open Access Publication Fund, wherein faculty can use some of the library’s collections budget to pay for a portion of those costs. It’s one way of promoting OA, and possibly weening a few authors off unduly greedy profit models. However, I’m not sure it’s that much of a lesser evil than keeping articles behind a paywall.

Copyright, to quote the United States Constitution, is supposed to “promote the progress of science and useful arts.” It also says a copyright term should last “for limited times,” which used to mean at most twenty-eight years, and is currently codified as ninety-five years. (See also: “A well regulated Militia.”)

Hypatia, Shakespeare, Galileo, Lao Tzu, and so on had no copyright protections motivating them. Now, ponder what kind of behavior the $1B annual profit margin of Elsevier’s parent company incentivizes, and ask yourself whether or not it’s consequentially in the public’s best interests to allow a library the right to actions which may or may not take a bite out of those revenues.

The core problem here is a vicious circle. This isn’t new; there’s been talk about the manufactured “crisis in scholarly publishing” for decades. You can’t get tenure unless you publish in an over-priced journal, which is over-priced precisely because its publisher knows that.

Thanks largely to historical momentum, so far, with a few notable exceptions, it’s proven a challenge for librarians to step up to the plate and say in good conscience, “Alright, since we cannot obtain this title for a fair price, we’re not paying for it anymore.” Similarly, attempts by authors at boycotting the likes of Elsevier have had limited success.

The current state of academic publishing is certainly not a sustainable model, given where library budgets are headed. Open Access is therefore a good thing, and librarians have a duty to promote and practice it, along with complimentary tactics, such as supporting institutional deposit requirements and rights retention strategies, namely by endorsing Plan S.

Those movements are simply not coming to a timely fruition as much as they need to. Which is why Controlled Digital Lending is so important. It holds the promise for filling that gap and reaching the places OA cannot. The latest bestselling novel, after all, isn’t going to be an Open Access title. In a broader sense, it comes down to this: there will always be actors who wish to restrict the flow of information for goals that run contrary to fostering our civilization’s prosperity.

If there’s any dilemma arising from having conflicting rights between those of copyright holders and the more positive rights of libraries to curate their collections, just as a commercial company is structured to maximize its own profits, anyone working for a library should be pushing to assert and preserve the imperative right of libraries to fulfill their purpose by circulating its holdings, no matter the medium. Books are for use.

Further Reading

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