Charlie Barlow, executive director of the Boston Library Consortium, contributed this guest post on Controlled Digital Lending in the aftermath of Second Circuit Court's decision in the Hachette v. Internet Archive appeal.

Roger Schonfeld’s latest piece in Scholarly Kitchen, "Lessons Learned from a Fair Use Defeat," feels unnecessarily defeatist in assessing libraries’ Controlled Digital Lending (CDL) efforts. From my perspective, CDL has significant potential. Schonfeld presents a false choice between policy work and copyright advocacy, yet libraries must engage on both fronts. And we are.

Libraries have hastened the erosion of fair use rights through licensing agreements they sign, with publishers dictating restrictions on how materials are accessed and used, curbing the flexibility traditionally available with physical collections. Despite libraries’ desire to build digital collections, most publishers prevent digital ownership, forcing libraries into recurring payment models with temporary access and little control. Schonfeld misses the point in suggesting that expensive commercial solutions like OverDrive, and attempts to improve user experience, like the Palace Project, offer alternatives to CDL.

Meanwhile, the people Schonfeld describes as "lawyer librarians” and “policy advocates” are deeply engaged in securing equitable e-book licensing terms through state legislatures and supporting digital ownership principles. Yet, Schonfeld implies that CDL advocates are simply pushing to "purchase a single print copy, scan it, and lend it broadly.” That’s an oversimplification. Libraries and library consortia, including my organization, have invested heavily in technologies that mirror the constraints of physical lending. Despite shortcomings in the commercial technology market, libraries have been diligent in ensuring that CDL operates within the bounds of “owned-to-loan” principles—one print book, one digital loan.

The recent Second Circuit Court ruling against the Internet Archive marked a setback for one interpretation of CDL, but as the Authors Alliance explains, it does not prohibit CDL universally. It leaves room for future implementations that could better meet fair use standards, especially given the lack of a digital first-sale doctrine. Furthermore, Kyle Courtney notes the decision is limited to the Second Circuit’s three-state jurisdiction of New York, Connecticut, and Vermont. CDL programs continue elsewhere and are endorsed by mainstream entities like the Chief Officers of State Library Agencies, the International Federation of Library Associations, and SPARC. 

Libraries are still pursuing CDL models that they believe fall outside the scope of the ruling, particularly for print materials unavailable as e-books. As Dan Cohen’s newsletter highlights, a majority of in-copyright works are not available digitally, underscoring the importance of CDL in making collections available. In fact, the Boston Library Consortium’s (BLC) anticipated CDL program stipulates that materials loaned using Project ReShare, our community-led open source resource sharing infrastructure, must be owned in print and unavailable as e-books in the commercial marketplace.

At BLC, we continue our IMLS-funded work to enable CDL and advance the conversation around the future of CDL with today’s release of a report outlining CDL workflows and technologies for responsible sharing. We’re also developing a Consortial CDL Toolkit to guide libraries and consortia, and we plan to host a CDL Summit in 2025 to explore CDL’s future.

As the conversation about CDL continues, it’s essential for organizations like ITHAKA to recognize the powerful role they can play in shaping the future of library collections. While Schonfield suggests that libraries have limited market power, this overlooks that ITHAKA, through JSTOR, brokers nearly $100 million in content agreements with publishers annually, largely supported by library funding. Content aggregators such as JSTOR, ProQuest Ebook Central, and EBSCO’s GOBI Library Solutions have significant influence. By aligning their practices with the values of libraries, these organizations have an opportunity to stand with us in supporting CDL and digital ownership initiatives, ensuring equitable access to knowledge. The future of CDL depends on us all.