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HaithiTrust Adopts CDL on an Emergency Basis

HaithiTrust is a coalition of university libraries that have pooled their resources in order to enable faculty and students to access copies of scanned books.

Access used to be restricted to the member libraries physical locations, but on Monday the HaithiTrust announced that, for the first time ever, they are going to allow remote access – but only for patrons whose university library has been closed.

The Emergency Temporary Access Service permits special access for HathiTrust member libraries located in the U.S. that suffer an unexpected or involuntary, temporary disruption to normal operations, such as closure for a public health emergency, requiring the library to be closed to its patrons, or otherwise restrict print collection access services.

The service makes it possible for member library patrons to obtain lawful access to specific digital materials in HathiTrust that correspond to physical books held by their own library. The Emergency Temporary Access Service will enable many HathiTrust member libraries to continue supporting the teaching, learning, and research mission of their institutions during said disruption in service.

If you click through to the announcement you will see that access is still restricted; patrons can only use this option if their university library is closed, and they can only access the scanned books that match their library’s catalog.

The new access terms resemble CDL fair use argument, or Controlled Digital Lending.

HaithiTrust had previously allowed access to a subset of the scanned copies of books in its collection under an older legal principle that said a patron could access the scanned copies only when the patron is in the library building itself, but they are relaxing that restriction because it’s an emergency. (And that’s not counting the scanned copies that are even more restricted, and can only be searched.)

What this tells me is that HaithiTrust is not completely convinced CDL is legal, but they are adopting it on a limited basis because it’s an emergency.

That is not good news for the Internet Archive.

Last week the IA picked a fight with authors when it announced that it was going to loan copies of the scanned books in its National Emergency Library, without limit, to any member of the public who signed up for a library card. (The IA had claimed they were doing this to support teachers, but they also had a significant number of recently published books, including Harry Potter in five languages and a heck of a lot of fiction.)

Before last week the IA had previously loaned copies of the scanned books in its The Open Library under the argument that CDL was completely legal fair use.  Then on Wednesday they announced that they were removing the waitlists and were switching to unlimited lending, and defended the move with the claim that it was fair use.

Here’s what’s so fun about the HaithiTrust  announcement: it essentially calls the IA’s argument bullshit. HaithiTrust has demonstrated that it’s not convinced this move is legal, and they would really prefer if you would visit a member library. In fact, as recently as December 2019, HaithiTrust said this about CDL:

While we are very interested in the legal theories offered in support of controlled digital lending, we have not identified a way to implement it through HathiTrust that we believe to be lawful.

Suddenly the IA’s position doesn’t sound quite so much like a slam dunk, does it?

TBH, I am not surprised. I have not been able to find any court rulings that explicitly cited CDL as fair use, which is why I had been referring to it as an untested legal opinion. I am looking forward to one day reading the ruling where the legality is decided, but at this point CDL is about as useful of a legal defense as a screen door would be on a spaceship.

image by Wallygva via Wikipedia

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