On July 22, 2020, Kyle K. Courtney, Copyright Advisor at Harvard University, spoke at a press conference about the copyright lawsuit against the Internet Archive brought by the publishers Hachette, HarperCollins, Wiley, and Penguin Random House. He holds a J.D. with distinction in Intellectual Property Law and a Master of Science in Library and Information Science (MSLIS) degree. Courtney is a published author and nationally recognized speaker on the topics of copyright, technology, libraries, and the law. These are his remarks:

Part of my work in scholarship is about the roles of copyright and the library landscape. I wrote the white paper on Controlled Digital Lending of library books with my coauthor David Hansen at Duke University Libraries. And it presents the legal rationale supporting the overview document called the Position Statement on Controlled Digital Lending, which has been endorsed by many national library organizations, regional library consortia, specific library systems, themselves, individual librarians, and legal experts. Ultimately, though, this is about how libraries can do what they’ve always done, right? Lend books. The paper looks at the underpinnings of the library’s historical mission through the lens of both fair use and first sale, true critical rights that I think any library uses in their programs, right? Both for lending and preservation. And I discuss how libraries can legally lend digital copies of their print collections using this technology.

But I’d like to point out that a CDL system is not a brand new concept, like Corynne stated: libraries loan books to the public. It’s what they do, for centuries. And libraries do not need permission or a license to loan those books that they have purchased or acquired. Copyright law covers those exact issues. But the difference here, I think, and some of the conflict is that the vendors and publishers have to ask permission, right? They must license. This is their business model. Historically, libraries are special creatures of copyright law; libraries have a legally authorized mandate, by the way, granted by Congress, to complete their mission to provide both access to materials. Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself. So that’s kind of fun to look at library’s unique role in copyright law, they sit right in the middle, both housing the economic purpose of copyright: “we buy the books, we buy lots of books,” and the access purpose of copyright, which is, “we loan the books out to our users.”

Or if you want to put that in the constitutional narrative: libraries are promoting the progress of science and the useful arts. Libraries have historically provided unfettered access and freedom to the books that they purchase for their communities. Now, because of that, there’s multiple versions of CDL-like systems that are currently used in libraries. But I think the origin of the real legal underpinning concept was first explored by Professor Michelle Wu at Georgetown University School of Law in an article that she wrote that I read many times, “Building a Collaborative Digital Collection.” Later, the Internet Archive formed up the Open Library Program, which Chris talked about, which was nine years ago. And other institutions are exploring this option right in their own individual libraries or part of consortia or within affinity groups.

It’s exciting to see, but at its core, Controlled Digital Lending is about replicating, through the Controlled Digital Lending Process, the legal and economically significant aspects of physical lending. And in other words, let’s put this simply: it continues to preserve the powers in the print. A library has these significant legal usage rights and they have great fiscal value in their collections. Some public library systems have spent millions upon millions of dollars to make their collections accessible to the community. And I believe the CDL structure preserves that value by enhancing access of these works to the public through technology. And as Chris pointed out, it’s the same technology that’s used by publishers to distribute in the commercial marketplace.

Again, this may be about the fear of technology, certainly, but technology should be used to enhance access to materials and do what libraries have always done: increasing access to knowledge by loaning the materials to the public. Just because we’re using technology does not mean that suddenly these acts are new. And in fact, libraries have special authority to provide both access longterm to information and preserve these materials for much longer than the business model of any particular corporation, company, or vendor.

And this is especially true with the 20th Century works that are in libraries, right? They have not been available in the digital world across the board. They call this “The 20th Century Black Hole.” Many 20th Century books are not available for purchase as new copies or in print or digital versions online. And I don’t know if your students are like mine or anyone else or patrons: if it’s not digital, it’s almost like it doesn’t exist. Libraries would like to provide digital access, but we can’t, because these are not available in a licensed format or in a digital format that’s available to loan, but we have them on our shelves.

So as many of our student patrons say, “We want access to these works,” and these could be long lost print works, by the way, that are really not lost; they’re on the shelves of our libraries, just trapped there, and in COVID maybe trapped there for a longer time than anticipated. So imagine the potentially enormous high social and scholarly value and relatively low risk if we make these works available to the public for reading, quoting, citing, adaption, using Wikipedia articles. So that’s kind of the exciting aspect of it. I’m not going to get into great detail, but our principle argument in this paper, which summarizes all these points, is that Controlled Digital Lending is a fair use, which is an equitable rule of reason, that permits libraries to do what they’ve always done. And under the First Sale Doctrine, loan those books to users. Thanks a lot for your time.