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LISTEN AND LEARN 
SESSIONS

Controlled Digital Lending 
An E-book Solution When There Is No E-book? 
Brandon Board, Anabaptist Mennonite Biblical Seminary
Karl Stutzman, Anabaptist Mennonite Biblical Seminary

ABSTR AC T Controlled digital lending is an intriguing model for 
libraries to make books available digitally. Building on fair use and 
the first sale doctrine, libraries digitize their print books, put the 
print books in dark storage, and lend one electronic copy for each 
print copy on a platform that prevents users from copying or redis-
tributing electronic versions. The concept empowers libraries to 
digitize in-copyright books when there are no alternatives avail-
able in the e-book licensing market. AMBS Library experimented 
with a small pilot controlled digital lending collection using Inter-
net Archive’s established digitization and controlled digital lending 
services. This session reported on the results of that experiment.

BACKGROUND

Anabaptist Mennonite Biblical Seminary is a small school based in 
Elkhart, Indiana with about 100 students. AMBS has both MA and 
MDiv programs with online and campus options. In addition to our 
print collection of about 100,000 volumes, the AMBS Library has a 
substantial electronic book and journal collection with both EBSCO 
and Proquest. Despite the richness of their electronic collections, 
AMBS librarians have problems supporting online education when 
the specific books students need are not available commercially 



154  AT L A 2020 PROCEEDINGS

as e-books. This might be because the books come from a small 
publisher or are too old to be digitized commercially, but are still 
in copyright.

When AMBS librarians first heard of the controlled digital lending 
(CDL) model, most notably put in practice by Internet Archive through 
its Open Libraries project, they were intrigued. Internet Archive is a 
nonprofit library based in San Francisco; founded by entrepreneur 
Brewster Kahle, it has a grand mission of “providing universal access 
to all knowledge” (Internet Archive n.d.). Internet Archive offers 
libraries the ability to partner for digitization through its network 
of regional scanning centers. Prior to this controlled digital lend-
ing project, AMBS librarians had already partnered with them for a 
number of digitization projects of various sizes, so this established 
relationship made for an easy start to a controlled digital lending 
pilot project.  

Controlled digital lending offers the ability to lend electronic 
versions of books similar to commercial e-books but, rather than 
relying on commercial e-book providers, it is based on print collec-
tions and the “first sale doctrine,” as well as an interpretation of fair 
use.

The idea is that libraries lend their print books on an electronic 
platform, maintaining a 1:1 relationship between owned print 
copies and online borrowers; the electronic platform must ensure 
that users can’t copy or redistribute the online version (hence the 
word “controlled”), and the print copy must not be available for 
patron access. For more on the legal justification for controlled digi-
tal lending, see the position statement at controlleddigitallending.
org, co-authored by an A-team of legal experts in library copyright 
(Bailey et al. 2018). There is also a very helpful white paper by David 
Hansen and Kyle Courtney on the same site that goes into substan-
tial detail about best practices for CDL (Hansen and Courtney 2018). 
The position statement reads in part that, “CDL techniques like those 
described in this Statement are designed to mirror traditional library 
practices permitted by copyright law” and goes on to say that “prop-
erly implemented, CDL enables a library to circulate a digitized 
title in place of a physical one in a controlled manner. Under this 
approach, a library may only loan simultaneously the number of 
copies that it has legitimately acquired. . . Further, CDL systems 
generally employ appropriate technical measures to prevent users 

http://controlleddigitallending.org
http://controlleddigitallending.org


Listen and Learn Sessions  155

from retaining a permanent copy or distributing additional copies” 
(Bailey et al. 2018).

The statement cites two principles in US copyright law support-
ing CDL. First is the common law “exhaustion principle” that is also 
known as “first sale doctrine” from Section 109 of the Copyright Act. 
This means rightsholders can only control the first sale of their works, 
and downstream outlets such as libraries and used bookstores are 
allowed to exist. The second doctrine that favors CDL is fair use—a 
basic part of US copyright law that includes a four-factor test of 
whether a particular use is fair (Bailey et al. 2018). 

According to the statement, there are six things libraries should 
do to ensure that their CDL program is properly implemented: 

1) Ensure that original works are acquired lawfully; 
2) Apply CDL only to works that are owned and not licensed;
3) Limit the total number of copies in any format in circula-

tion at any time to the number of physical copies the library 
lawfully owns (maintain an “owned to loaned” ratio);

4) Lend each digital version only to a single user at a time just as 
a physical copy would be loaned;

5) Limit the time period for each lend to one that is analogous to 
physical lending;

6) Use digital rights management to prevent copying and redis-
tribution (Bailey et al. 2018).

The white paper on the controlled digital lending website further 
suggests focusing efforts on low-risk book candidates: “Book candi-
dates with the lowest risk—and the strongest fair use argument, 
though those analyses are not necessarily tied together—are gener-
ally those with the lowest likelihood of market exploitation.” This 
means focusing on nonfiction, materials in the “out of print, off the 
market” category, and on older works. It also suggests a takedown 
policy and “mechanism for rightsholders to communicate about 
books they would prefer not be lent” (Hansen and Courtney 2018).

In terms of technical infrastructure, Internet Archive uses Adobe 
Digital Editions behind the scenes to manage its implementation of 
controlled digital lending. Internet Archive is itself a library; they 
have a public access mission and shipping containers filled with 
donated books, many of them surplus from used bookseller Better 
World Books. IA also partners with libraries who have their own 



156  AT L A 2020 PROCEEDINGS

legitimately acquired collections to digitize. In addition to the legal 
basis for CDL, Internet Archive has a takedown policy. Basically, if 
rightsholders complain, IA takes things down. 

In the spring of 2020, the onset of the COVID-19 pandemic turned 
everything upside down, including controlled digital lending.  In the 
context of the COVID-19 pandemic, Internet Archive decided to push 
the boundaries of its controlled digital lending operation by setting 
up the National Emergency Library, which suspended waitlists for 
controlled digital lending through June, effectively breaking the 1:1 
relationship between print copies and users accessing them virtu-
ally. They made a case for this based on extending the boundaries 
of fair use in the context of the coronavirus national emergency. 
Keep in mind that, though the Internet Archive CDL collection is 
visible globally and the pandemic is also global, the ideas under-
lying CDL are based on US copyright law, hence the appeal to a 

“national” emergency. With the attention that IA got for the National 
Emergency Library, it was just a matter of time before publishers 
and authors’ groups lined up to condemn the library. On June 1, IA 
was sued by a group of four major publishers—Hachette, Penguin 
Random House, Wiley, and HarperCollins (Harris 2020). The lawsuit 
is still fresh, so the outcome is uncertain. Internet Archive closed 
the National Emergency Library on June 16, two weeks sooner than 
the planned June 30 date. The lawsuit, however, targets IA’s imple-
mentation of controlled digital lending directly, not just the national 
emergency library.

AMBS’ CDL EXPERIMENT

When AMBS librarians learned about this initiative, they saw a 
potential solution to the problem mentioned earlier—namely, that 
sometimes an e-book is the best format for the library’s users, but 
not every title has an e-book version available. Could CDL be used 
to supplement existing electronic holdings and create a sort of 
on-demand e-book library?

In the fall of 2019, they decided to conduct an experiment with 
CDL. In order to determine which titles would be included in the 
experiment, they assessed the library’s course reserve lists, looking 
for books that met the following criteria:

• required reading for a course;



Listen and Learn Sessions  157

• not otherwise available as an e-book;
• from smaller publishers (who, it was assumed, wouldn’t sue).

In the end, fifteen titles were selected to use as part of this pilot proj-
ect. Because controlled digital lending relies on a 1:1 relationship 
between print books and digital copies, the first step to implementing 
it is to make sure that there is an extra copy of each book that is to be 
converted into the controlled digital format. For AMBS, this meant 
purchasing additional print copies of the fifteen titles in question. 

Once the extra copies arrived, AMBS librarians worked with Inter-
net Archive to provide these print copies to them for digitizing. A 
preexisting relationship with Internet Archive made this part rela-
tively simple. Getting the books to them was just a matter of provid-
ing some basic information about the books and then packing and 
shipping the items to the nearest digitization center (in this case, in 
Fort Wayne, Indiana).

Once the staff at Internet Archive had finished their digitiza-
tion work, they returned the print copies of the books. At this point, 
the ongoing responsibility of the AMBS Library is to ensure that 
these print books remain inaccessible—so they are stashed in the 
basement storage room. The idea here is that, by restricting digital 
access to one user at a time and preventing anyone from accessing 
the print copy, the books’ formats have essentially converted—not 
reproduced or copied.

From start to finish, the total cost of this initiative was about 
$800—which averages about $55 per book. Included in that is the 
cost to purchase additional print copies of these books, as well as 
Internet Archive’s digitization fees ($3 per book, plus $0.10 per page).

Once Internet Archive has finished uploading the materials to 
their Open Library platform, the books are available for anyone to 
borrow.  The screenshot on the next page shows an example e-book 
within Internet Archive’s platform. Note the blue “Borrow for 1 hour” 
option, which has now become the default loan period for items 
within the Open Library collection.

RESULTS & ISSUES

So how did this go? In general, AMBS librarians feel that there is 
room for improvement. In principle, there is great potential for 
controlled digital lending and its potential usefulness for libraries 



158  AT L A 2020 PROCEEDINGS

in the future but, based on this experience, there are some serious 
questions about how useful or practical this particular method of 
implementation can actually be—especially on a larger scale.

Some of the key issues that arise on a critical evaluation of the 
program are:

• Usage statistics: Internet Archive offers stats only on a title’s 
previews—meaning, how many times did someone land on the 
title’s listing? As of early June 2020, the title with the highest 
number of previews had 83, while the lowest had 10. One could 
reasonably assume that at least some of those previews ended 
up with the book being borrowed, but there really is no way 
of knowing how many. This makes it difficult to justify the cost 
involved, as there is no way to determine the return on invest-
ment.

SOURCE – archive.org/details/christianityinaf00bedi_0/page/n3/mode/2up



Listen and Learn Sessions  159

• Unavailable titles: In the few months between the digitization 
and this presentation, several of the digitized titles had been 
removed, likely as a result of a publisher’s takedown request. To 
this point, Internet Archive has not informed AMBS librarians 
of why the titles are gone, nor have they offered a refund for the 
digitization charges incurred. 

• Questions about future legality: Internet Archive’s implementa-
tion of its “National Emergency Library” (where they removed 
usage restrictions to accommodate the rapid changes libraries 
experienced because of COVID-19) has raised questions about 
the future of controlled digital lending.  Specifically, it seems to 
have drawn the attention of unhappy and litigious publishers, 
who have now made it a priority to eliminate the program. So 
the question is, now that Internet Archive has shut down their 
National Emergency Library (two weeks early, even), will the 
publishers be satisfied to allow CDL to continue with its normal 
usage restrictions, or do they want to destroy it entirely?

• Platform limitations: There are some significant limitations for 
end users that make these CDL e-books less useful than tradi-
tional e-books. For example, users are restricted to either read-
ing online or downloading the entire book—there’s no way to 
download a single chapter or a certain page range. Users are 
unable to highlight, annotate, etc., even in their downloaded 
copy of a title. The single-user limitation creates issues in an 
academic setting, as well. A professor could not rely on one 
of these titles for course readings, as the first student to get to 
the site would lock out his/her classmates until the title was 
returned (although the recent change to 1-hour only checkouts 
makes this more akin to physical course reserves). Addition-
ally, the single-user limitation does not just apply to users from 
AMBS. Anyone anywhere in the world is able to check out one of 
the titles that we’ve digitized—effectively locking AMBS Library 
patrons out until the title has been returned.

NEXT STEPS

So, what now? AMBS librarians have contemplated next steps after 
their experiment with controlled digital lending. They could keep 
going with digitizing reserve books, but a challenge is anticipating 



160  AT L A 2020 PROCEEDINGS

them far enough in advance in order to get them scanned in time 
for use during the semester.

AMBS Library is also part of a collaborative project to put French 
and Portuguese Anabaptist theological books online. Traditionally, 
they have done this using an open access model. However, they 
have discussed negotiating with publishers for more recent titles to 
go online via controlled digital lending rather than fully open access.  
Perhaps these publishers would be more willing to allow this.

There are also a fair number of books in the AMBS Library stacks 
that have multiple copies. Some of these were used heavily in the 
past but have seen their usage decline in recent years. Instead of a 
weeding project to get rid of unused second (or third!) copies, could 
these titles be moved to dark storage and put into controlled digi-
tal lending? 

It may also be possible to bring controlled digital lending 
in-house and remove Internet Archive from the equation altogether. 
The copyright rationale would be the same, but it would allow the 
AMBS Library to provide access only to its patrons—instead of to 
everyone in the world. The hurdles here are finding the staff time 
to digitize entire books, as well as finding (or developing) a platform 
that would restrict concurrent access.

Ultimately, though, the best approach may be to wait and see 
what happens with the lawsuit. Investing significant time and 
money in digitizing in-copyright books might not be the best long-
term strategy if the publishers are successful in shutting down IA’s 
CDL operation. We are optimistic that IA has a good fair use case 
for what they are doing and there is strong support in the library 
community. This is really a test of our fair use rights as libraries.

WORKS CITED

Bailey, Lila, Kyle K. Courtney, David Hansen, Mary Minow, Jason 
Schultz, and Michelle Wu. 2018. “Position Statement on 
Controlled Digital Lending by Libraries.” controlleddigitallend-
ing.org/statement.

Hansen, David R. and Kyle K. Courtney. 2018. “A White Paper 
on Controlled Digital Lending of Library Books.” Preprint. 
LawArXiv. doi.org/10.31228/osf.io/7fdyr.

http://controlleddigitallending.org/statement
http://controlleddigitallending.org/statement
http://doi.org/10.31228/osf.io/7fdyr


Listen and Learn Sessions  161

Harris, Elizabeth A. 2020. “Publishers Sue Internet Archive Over 
Free E-Books.” New York Times, June 1, 2020. www.nytimes.
com/2020/06/01/books/internet-archive-emergency-library-coro-
navirus.html.

Internet Archive. n.d. “Internet Archive: About IA.” Accessed July 13, 
2020. archive.org/about.

http://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html
http://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html
http://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html
http://archive.org/about

