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Comment by jrochkind1 | Hacker News Reader

So, this case was not about CDL (Controlled Digital Lending). It was about DL with the "C" removed. Specifically the IA's previous CDL program only lent out one electronic copy at a time per physical copy held, and this case is about a program at beginning of pandemic where they suspended these limits.

There could still be appeals in store for this case, but regardless of the outcome of this case, CDL could still be quite legal (and I think ought to be -- libraries ability to lend out books without publisher permission or license has been a huge gain for society, and I think must be able to continue in the electronic realm; and I think there are good legal arguments for it, on extension of first-sale doctrine to electronic realm and on fair use).

It was not helpful for the case of CDL to have this pretty bad ("uncontrolled digital lending"?) case decided first though, I agree this was not a very strategic move.

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They lost here on both regular CDL and the National Emergency Library "uncontrolled" variant.

The court's decision and conclusion is almost entirely about just regular CDL:

"This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."

(emphasis added)

Well, that is a disaster. I'll have to read more, I hadn't realized that.

Yeah the posture and discussion on that is basically "we don't even need to go into the NEL because CDL as a whole isn't fair use."

There are some limiting principles... the lower decision only covered books that were "in print" in eBook form... but the rationale here is quite broad and would easily stretch beyond these specifics. (There's a small amount of analysis related to whether the digitization involved in CDL is "transformative" that rests on official publisher eBooks being available, but there's a strong overall impression that the decision would come out the same way for things not already available digitally.)

So what I'm mad at is not that IA did CDL and imperilled thier other work -- it's that instead of doing CDL in a way most likely to result in a successful case if sued, they did it in a reckless not-C way that resulted in a bad case that ruined CDL, where maybe a better case with better facts would not have.

In a more reasonable world we could imagine Congress might pass a law authorizing actual one-copy-per CDL by non-profit libraries. But nobody's going to hold their breath for that.

Yes, the NEL period surely soured even more what was already going to be a hard case, and gave the publishers greater impetus to bring it, and blunted the negative PR they'd have gotten. I don't know that any CDL that was done on a significant enough scale to be worth the suit was ever going to survive, though.

I've thought since the beginning of this saga that a change in statute would pretty much be needed for CDL or something similar. The idea being to craft something that extends the philosophy or idea of libraries in the face of an increasingly digital world where doing much of anything requires a copy, things are licensed rather than sold, and the first sale doctrine has little application, but I agree with you that such an idea has dim prospects.

Also, I lazily assumed differently, because I'm used to appellate courts making it as easy as possible and narrow as possible and not making new law they didn't need to make. I expected since the NEL thing was so blatant and made the decision easier, they'd just make a decision about that. Isn't that how it usually used to work? New era I guess.

But looking at it, maybe this was the way the original suit was set up necessarily, and the lower court decision? OK.

I agree. IA skipped the C and basically poisoned the well for any future CDL type cases. Very frustrating.

IMO, properly executed CDL had/has a good chance of succeeding.

> the lower decision only covered books that were "in print" in eBook form

This is actually a pretty significant limitation, because so much of what was practically available as CDL was actually out-of-print books that the publishers never bothered to make available for eBooks licensing. It's at least reasonable to expect that the fair-use analysis might tilt the other way for such books - the use is a bit more "transformative" because at least it technically contributes something that the publisher didn't, and the potential of market harm wrt. the copywritten work becomes a lot more speculative.

My hope is that doesn't mean you can still digitize media that's on a dying format and that can still be used in CDL. Like if you owned a legitimate copy of a movie on betamax that format has been dead for years you can't buy a new betamax player you can digitize that before the tape becomes unreadable. That's been explicitly in copyright law last I looked and it's just a matter of defining what media is "dying" enough to count under this.

It's unfortunate that IA did CDL so poorly. In the original findings it came out that they were not controlling the print copy, so they were never really doing CDL. Also, it was super shady to send people to their own used book store from the digital copies. Really just a bad first case for CDL.

If you read the decision (https://ww3.ca2.uscourts.gov/decisions/isysquery/797361df-8d...), it almost entirely focuses on CDL not being legal in general rather than bringing up IA's "National Emergency Library" program. One illustrative quote:

"IA maintains that it delivers each Work “only to one already entitled to view [it]”―i.e., the one person who would be entitled to check out the physical copy of each Work. But this characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full. That Section 108 allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.”)."

Technically true, but people are naive to think the catalyst to file the lawsuit wasn't the NEL.

CDL had been going on for years in a bit of a cold war. Publishers had a lot to lose if they lost CDL and just lived with it. When NEL happened, they decided to use their nukes. They had a rock-solid case against NEL, so might as well use it and try to take out CDL at the same time.

If they lost CDL but won NEL, they would be back where we've started for years.

It's true that this case isn't really about CDL, but it's also not just about the EL.

It's not about CDL because it's very specifically focused on Open Library's specific implementation, Open Library. Nobody is suing Hoopla or OverDrive. The courts are openly acknowledging that by explicitly spelling out why this ruling only applies to Open Library and not to other well-known CDLs.

And the Emergency Library was just the concrete pressure pipe that broke the camel's back. Publishers and author's unions had reportedly been trying to negotiate with IA about OL all along, and EL was just the move that prompted them to stop playing nice and take it to court. The rulings don't need to focus on EL, though, because a ruling against the aspects of OL that are under contention would automatically apply to EL as well.

No, that's wrong. The original case covered both CDL and the "emergency" lending, but this appeal focused solely on CDL.

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