Hachette, Controlled Digital Lending, and the Consequences of Divorcing Law from Context

Abstract

Abstract This article will look at the recent Hachette decision against the Internet Archive, analyzing how the court’s reliance on past authorities with insufficient context distorted their meanings. It will focus only on the controlled digital lending (CDL) aspect, not discussing the other claims in the suit or exploring the specific implementation of CDL by the Internet Archive (IA). Since CDL programs can vary widely, IA is better situated than others to identify missing context related to the analysis of the unique components of their efforts. And other libraries engaging in CDL should be able to easily see where their programs differ from the judge’s description of IA’s. For that reason, the analysis below only delves into the language that might be used to chill all CDL programs or innovation more generally.