CDL and Fair Use

CDL is a polarizing concept. Some authors and publishers have questioned the copyright interpretations that underlie and support it. Their position is that CDL violates the economic incentives and intended rights of the copyright holders in their craft and contribution. Some scholars and various information purveyors offer that CDL allows the library to engage in its nonprofit mission of providing education and knowledge sharing to the public in our technological era. Following the closure of libraries in 2020 because of COVID-19, these conflicting viewpoints faced off in Hachette Book Group, Inc., et al. v. Internet Archive et al., which was decided on March 24, 2023.

In this case, four leading book publishers brought an action alleging that the Internet Archive infringed their copyrights by scanning print copies of their books and lending digital copies to users of its National Emergency Library without the publishers’ permission. Parties filed cross-motions for summary judgment. The Internet Archive asserted the defense of fair use in response to the publisher’s claim of copyright infringement. Fair use is a statutory exception to copyright infringement in that it allows users to promote the progress of science and useful arts for criticism, comment, news reporting, teaching, scholarship, or research. In determining whether a use is considered fair use, the courts evaluate the purpose, nature, amount, and effect of the use of the work. In this case, the court found that the Internet Archive’s use was commercial in nature, as entire books were scanned in, the library competed with publishers, and, ultimately, the library failed to establish fair use.

Ebooks and Libraries

This case made a defining statement about our current laws and how they relate to publishers’ and libraries’ contracts involving ebooks. It also highlighted the necessity to attempt to define these contractual and public service rights and obligations in the law.

The eBook Study Group, along with its supporters, is attempting to create new state laws to address information democratization, copyright law, libraries’ mission, authors’ and publishers’ rights, and new and expanding technologies. Ebooks for libraries can cost up to three to 10 times the consumer price for the same print book. When an ebook from one of the largest publishers is acquired by a library, the license to use that ebook expires 24 months after the purchase of the license, or 26 checkouts. The library then has to decide whether to buy another license for the same book, paying the same price or an increased price, to offer it for another licensing term. In addition to the license cost, some libraries also pay a cost per circulation fee on top of the initial fees. This structure is drastically different from that of buying print books and can create challenges for libraries in acquiring and providing access to ebooks.

The eBook Study Group was co-founded by Kyle K. Courtney, a copyright lawyer and librarian who is also the co-founder of Library Futures. The eBook Study Group defines itself as “a new emerging coalition of state legislators, librarians, and library stakeholders in numerous states [that is] recommending the adoption of state law based on consumer protection, contract law, and contract preemption to regulate library ebook contracts with publishers.” The organizations supporting the eBook Study Group are Library Futures, the EveryLibrary Institute, ReadersFirst, the Authors Alliance, CLC (Connecticut Library Consortium), the Massachusetts Library Association and Public Knowledge. On its website, the eBook Study Group offers a link to model legislation for states that are interested in creating laws to govern the contracts between publishers and libraries.

Model Legislation

According to the eBook Study Group, the model legislation aims to ensure the following:

• Equitable licensing terms are mandated for the acquisition of ebooks.
• Materials in digital form will have the same utility for libraries as they have in analog form.
• No contract may cause or require the library to violate the confidentiality of a patron’s library records.
• A court of law may rule on the enforceability of these contracts.

The eBook Study Group encourages every librarian and community member to connect with state library organizations and legislative committees, take action in supporting bills in their state by contacting local representatives, and contact local representatives to voice the need for an active bill in their state if there is not already one. Through the courts, copyright law must support the rightsholder’s need for compensation and ownership and the library’s prescribed mission while taking into account the impact that decisions may have on the future incentive to create, the citizens’ right to know, and the public advancement of knowledge. Individual states are having to carefully consider this new legislation when it is proposed as they contribute precedent and the fine-tuning of ebook legislation.

State Bills Involving Ebooks

The following are some recent state bills, accessed via the eBook Study Group’s Bill Tracker and other sources:

• Rhode Island introduced SB 498, which was referred to the Senate Education Committee as of March 7, 2023, scheduled for hearing and consideration on May 26, and held for further study on May 31.
• Massachusetts introduced SB 2188 and HB 3239, which were both referred to the Joint Committee on Tourism, Arts, and Cultural Development as of Feb. 16, 2023.
• Connecticut introduced HB 6800, which was referred by the House to the Committee on Appropriations on April 25, 2023, and HB 6829, which was passed temporarily in the House on June 7, 2023.
• Hawaii introduced HB 1412, which is in review by appointed House Conferees as of April 27, 2023, post-disagreement with the Senate amendment.
• Maryland’s bill, SB 0432, was determined to be unconstitutional by a federal court on June 13, 2022, in Association of American Publishers, Inc. v. Frosh.
• New York’s bill, S 2890, was vetoed by the governor on Dec. 29, 2021.
• Illinois introduced HB 4470 and SB 3167, which both stalled in January 2023 and were labeled “Session Sine Die,” meaning no further dates of discussion are specified.
• Tennessee introduced SB 1955 and HB 1996, both still in committee as of this writing.
• Missouri introduced SB 1095, which has been in committee since March 7, 2023.