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Internet Archive Digitizes Closed Marygrove College’s Library
After initially exploring the donation of some of its library collections to nearby Wayne State University, Marygrove College ultimately decided to give its 70,000 books and 3,000 journal volumes to the Internet Archive, which digitized the collection and made it available via Controlled Digital Lending.
After enduring several years of declining enrollment, Marygrove College, a small Roman Catholic institution in Detroit, closed in December 2019. After initially exploring the donation of some of its library collections to nearby Wayne State University, the college’s Board of Trustees ultimately decided to give its 70,000 books and 3,000 journal volumes to the Internet Archive (IA), which digitized the collection and placed the print copies in storage.
“The Geschke Library is a well-curated, world class collection with strengths in the humanities, education, and social justice,” IA explains on its site. “The collection reflects the strong historical and cultural influences of the city of Detroit, bringing a uniquely Black American perspective into the light for access.”
On Tuesday, IA officially debuted the collection, which is now available via Controlled Digital Lending (CDL) on archive.org/details/marygrovecollege.
“We didn’t want the majority of the volumes to end up in a landfill. By donating the materials to the Internet Archive, we were able to preserve the entire collection that we had built over the decades and make it available to everyone,” Dr. Elizabeth Burns, Marygrove college president, said in a statement. “There was a sense that all was not lost. The legacy of the collection will be available for ongoing education. That really helped ease the pain of the transition.”
IA’s CDL model loans copies of books that it has digitized for free on a one physical copy, one ebook, one user basis using digital rights management software that prevents users from making additional copies, and enables IA to recall/delete copies from a borrower’s device after the loan period concludes. The model, which IA pioneered, has drawn support from many academic and public libraries. Key reasons include enhancing access orphan works, as well as other books that publishers have not made available as ebooks, and making library collections accessible to print-disabled patrons.
However, CDL has come under intense fire from publishers. U.S. fair use doctrine, which was codified in the Copyright Act of 1976, specifies that its protections do not extend to creating and distributing complete copies of a copyrighted work [specifies limitations on creating and distributing portions of a copyrighted work]. When copies are transferred as digital files, [the entire work must be copied and distributed]. CDL proponents argue that the model adheres to the spirit of copyright laws that enable library lending, but publishers describe it as piracy. [For more on why this is in disupte, please read the comment from Harvard copyright expert Kyle Courtney below. Ed. November 2, 2020].
The issue came to a head this spring. On March 24, IA launched its “National Emergency Library” offering unlimited simultaneous access to its collection of 1.4 million digitized books, citing the need for reading and research materials while public libraries, K–12 school libraries, and academic libraries were closing buildings due to the COVID-19 pandemic. Hachette, HarperCollins, Wiley, and Penguin Random House sued, describing the emergency library as “purposeful collection of truckloads of in-copyright books to scan, reproduce, and then distribute digital bootleg versions online,” and CDL as “an invented theory…the rules of which have been concocted from whole cloth and continue to get worse.”
IA discontinued the unlimited simultaneous lending model on June 16—two weeks before it was originally scheduled to shut down—but the suit has continued. It is unclear how the acquisition and digitizing of Marygrove’s collections, which was begun prior to the suit, will impact the case. However, the collection offers another example of how advocates for CDL envision the digitize, store, and loan model.
Marygrove’s Geschke Library “reflects a history of a hundred years of interests and passions and collections that have been built by librarians, faculty, and students,” IA founder and digital librarian Brewster Kahle said in an announcement. “Having that collection all online brings that community online, but also allows that artifact to be used by people all over the world. That is the idea of this next generation of Marygrove College Library.”
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Caroline Taylor
"the Copyright Act of 1976, specifies that its protections do not extend to creating and distributing complete copies of a copyrighted work" This is not true. Please correct.
Posted : Nov 02, 2020 06:55
Kyle Courtney
Thanks for this article on this amazing collection!
However, I think there is a common misstatement/myth about the fair use doctrine that warrants a brief correction? And that myth is that somehow fair use can’t “extend to creating and distributing complete copies of a copyrighted work.” From the Supreme Court to the fair use statute itself, the fair use doctrine does not have a ban on copying or distributing “the whole thing.” This is a myth that I, and my copyright colleagues around the country, have been trying to “mythbust” for decades.
Again, neither in the language of the fair use statute, 17 USC §107, nor the 40+ years of fair use jurisprudence that has interpreted this statute, has somehow banned the potential for copying an entire work under fair use. In fact, the statute was designed specifically to avoid the use of an arbitrary number or amount. The Supreme Court made the law of the land on this factor when it stated in Sony Corp. of America v. Universal City Studios, Inc. (the Betamax case in 1984) “the fact that the entire work is reproduced … does not have its ordinary effect of militating against a finding of fair use.”
The third factor of fair use statute, which inquires as to the amount used (“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”), is only one part of a careful calculated balance reflected in all four factors of the fair use statute. Certainly it is easy to say that “less is more,” for this third factor, but even that is not quite accurate; there are many, many cases where copies of the “whole thing” have been found to be a fair use. Beyond the Sony Betamax case, contemporary courts have adopted this interpretation for modern digitization projects. In Authors Guild, Inc. v. HathiTrust, a case about digitized books and access, the court reaffirmed the flexibility in the third factor, and stated that “[f]or some purposes, it may be necessary to copy the entire copyrighted work, in which case Factor Three does not weight against a finding of fair use.” Judge Leval followed the same approach from the HathiTrust decision, when he wrote in Authors Guild v. Google, another book digitization case, “courts have rejected any categorical rule that a copying of the entirety cannot be a fair use.”
So, let us embrace the flexibility the law provides, including the fair use and the famous third factor, and bust myths that would potentially chill the ability for teachers, authors, scholars, artists, journalists, musicians, libraries, archives, and any other people from being able to utilize their rights under fair use.
Posted : Oct 25, 2020 04:03