One idea that might be worth exploring as a way to mitigate the legal issues is lending. The Internet Archive has successfully implemented a lending system for their collection of digitized books; readers can check a book out for a limited period, and each book can be checked out to at most one reader at a time. This has not encountered much opposition from copyright holders.Now, Controlled Digital Lending by Libraries offers libraries the opportunity to:
A similar system for emulation would be feasible; readers would check out an emulation for a limited period, and each emulation could be checked out to at most one reader at a time. One issue would be dependencies. An archive might have, say, 10,000 emulations based on Windows 3.1. If checking out one blocked access to all 10,000 that might be too restrictive to be useful.
- better understand the legal framework underpinning CDL,
- communicate their support for CDL, and
- build a community of expertise around the practice of CDL.
Their statement analyzes CDL in terms of the principle of exhaustion and the fair use doctrine:
In order to properly position CDL within the analysis above, libraries should (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 circulation 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; and (6) use digital rights management to prevent copying and redistribution.The analysis is based on the idea that a library can lend either the physical or the digital version of a physical book it owns. This covers, for example, the Internet Archive's collection of digitized books.
Alas, "(2) apply CDL only to works that are owned and not licensed" means that the analysis is inapplicable to software and emulations, since these are essentially always licensed via the End User License Agreement, not purchased.
Jim O'Donnell comments:
Last week, the Internet Archive's open library forum was devoted to the practice and possibilities of controlled digital lending, a way of relying on fair use to begin to make in-copyright library materials available to the public digitally while respecting copyright and complying with the law. Three recent documents:
The problem addressed is critical, what Brewster Kahle of the IA calls "the loss of the twentieth century" -- our collective inability to access the bulk of the material in our library collections, from the 1920s forward, in any form other than print.
- a longer white paper on the subject: https://osf.io/preprints/lawarxiv/7fdyr/ Further document is included at https://controlleddigitallending.org/readings
- a more concise 'position statement' authored by legal scholars at Harvard, NYU, Georgetown, Duke, and the Internet Archive: https://controlleddigitallending.org/statement
- an even more concise blog post by Duke's scholarly communications librarian David Hansen summarizing the issues: https://blogs.library.duke.edu/scholcomm/2018/09/28/controlled-digital-lending-of-library-books/
I'm a big fan of your work, and I thought you might be interested in a resource that we've developed, the Code of Best Practices in Fair Use for Software Preservation, that can solve this problem without the need to resort to a lending metaphor, which I think you rightly point out would place some pretty awkward limits on emulation.
Using the full flexibility of fair use, and relying on community norms about what's legitimate and fair, our rationale would permit use of emulation in support of teaching and research without artificial limits on how many instances can be run, etc. Check it out! We'd love to hear your thoughts.
Controlled Digital Lending (the organization) is about books and other media, not about software. Fair Use isn't a viable approach to making entire books available. As I pointed out, their analysis of lending shows it can't work for software.
Ooops - I wasn't clear. "it can't work" should have been "CDL can't work".
Controlled Digital Lending's analysis also can't be used to permit lending of e-books, other than that provided by their specific license.
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