We are writing to express our increasing concern with the Controlled Digital Lending theory and specifically with Internet Archive’s reliance on it to justify its Open Library’s mass unauthorized copying, display, and distribution of books. Such unauthorized uses of books take money directly out of authors’ pockets and violate copyright law.
Recently, Authors Guild members who have sent Internet Archive takedown notices requesting their books be removed immediately from Open Library have received the following response:
“The program operates consistently with the ‘Controlled Digital Lending’ concept articulated by legal scholars in a white paper and statement at https://controlleddigitallending.org.”
The CDL concept, however, is based on a faulty legal argument, one that has already been rejected by the U.S. courts. In Capitol Records v. ReDigi, the Second Circuit held that an entity did not have the right to resell or offer digital files of copyrighted music even if the original buyer of the original file purchased it legally. The Court found that reselling the copyrighted works of others without authorization from the copyright owner was an unauthorized reproduction that directly competed with the “rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.” The Second Circuit further held that its decision applied equally to digitized music or digitized books, stating “The digital files resold by ReDigi, although used, do not deteriorate the way printed books and physical records deteriorate.”
The CDL fair use theory also relies entirely on a completely outdated and misconstrued conception of the contemporary book market, as explained in our recent blog on CDL—as though publishers were the only ones that had copyright interests that potentially could be harmed. Nowhere does the white paper mention the copyright interests of authors—who generally remain the copyright owners of their works, whether traditionally or independently published, and control most non-traditional book rights.
Authors lose potential income from every unauthorized loan made under the CDL theory. The digital reproductions and loans merely supplant the legitimate sale of ebooks, whether library editions that the library would otherwise license, or ebooks that the author or publisher would sell directly to consumers. And for those books not yet available in ebook format, CDL usurps that market before the author even has a chance.
Even if an author is not currently monetizing her book, it is still usually one of her most important assets. When authors’ works go out of print, or copyright termination rights become ripe, authors are entitled to recover any rights licensed to a publisher, and many do. The author may then repurpose the work, update it, or simply reissue it with a new publisher; and, as has become increasingly common today, authors can easily self-publish their older works to bring them back to life. Hundreds, if not thousands, of our members have done so. Stories of older books becoming popular again because of a historical event, or a new film or TV show, for instance, are not uncommon. Authors should be able to profit from that, not libraries or platforms like Open Library.
Our recent survey shows that even full-time authors’ annual median income is down to just $20,300. Even a few hundred or thousand dollars in lost sales due Open Library’s free online access or other CDL practices is a lot of money when you are living at or below the poverty line. The desire to provide free, easy access does not justify robbing authors of that income.
The unauthorized copying, distribution, and display of books that CDL purports to amounts to theft of authors’ potential income. It is shameful, unjust, and even inhumane; and it must be stopped. For now, we are content to give Internet Archive and other users of CDL the benefit of the doubt, and to believe that their false arguments derive from a misconception or misunderstanding of copyright law and contemporary book markets rather than malice. We ask you to treat authors with humanity, to stop looking at access to books from a unidimensional perspective, and to comprehend the grave harm you are helping to bring on authors.
The undersigned sincerely request that Internet Archive and other practitioners of Controlled Digital Lending cease the practice of copying books for public display and distribution without authorization.