In June 2020, four major publishers sued the Internet Archive for lending digital books online (as we have covered multiple times). The Archive maintains (and we agree) that using Controlled Digital Lending to lend PDF scans of books is both legal under fair use and an important part of continuing the library mission in the 21st century. Judge John Koeltl ruled in favor of the publishers in the case Hachette v. Internet Archive last year, and it is now being heard again on appeal (with some seriously faulty reasoning at play). The publishers filed a reply brief in the case last week.

While it may feel exhausting for many practitioners to continue to follow this case, particularly as Controlled Digital Lending thrives in the library community through national standards and new government funded projects, we want to make it clear: if Hachette wins in the second circuit, libraries can expect to face a variety of consequences for providing access to digital books outside of the expensive, surveilled, licensed platforms that publishers control.

We frequently hear from libraries that are concerned about lending or digitizing materials and from patrons unable to access the materials they need. The 2020 legal challenge to Controlled Digital Lending in Hachette v Internet Archive created a chilling effect for institutions, and even though CDL is perfectly legal within a fair use framework, the fear of litigation in the library community is real. If the publishers win this case, libraries should expect pressure from vendors to stop their digitization projects. They should expect increased restrictions on fair use in contracts. They should expect fewer selections and more restrictions on digital lending platforms, proprietary DRM, and more restrictive licenses.

The “thriving ebook market” the publishers tout cannot and should not be the licensed ebooks rented to libraries by corporate landlords intent on extracting every penny from the public. Protecting digital lending means supporting innovative lending practices and celebrating the many ways that libraries, including the Archive, provide access to books to support an educated citizenry.

We are building a world where authors write books, publishers publish them, and libraries buy them, preserve them, and lend them as if they are owned in whatever format they see fit – just as they have always done.

‍