- Best Practices in Fair Use for Software Preservation
- A Preservationist's Guide to the DMCA Exemption for Software Preservation
Best Practice in Fair UseThe "fair use" defense against copyright violation is tricky. There can never be hard-and-fast rules about what is and what is not "fair use" because each case must be judged on its merits using a four-factor test. Various fields, for example documentary film, have established codes of community best practice which can encourage the use of material under "fair use" by providing context for a defense.
SPN addressed the reluctance of institutions to rely on the concept of "fair use" when preserving software similarly, by creating a code of best practice:
This document represents the consensus judgment of experienced professionals working with legacy software at a variety of institutions across the U.S. It is organized by common situations in which fair use is available to enable core preservation practice. It was created using a three-part process, which has been used successfully by over a dozen other communities of practice since 2004.The process started by interviewing practitioners to identify their practices about copyright, and what their "pain points" were:
They also revealed an overarching theme of frustration with the growth of a "permissions culture". Many professionals mistakenly assume that the only safe path through the copyright thicket is to obtain express permission from a copyright holder for virtually all preservation activities. At the same time, they recognize that permission would often be impossible to get. This and related conclusions were documented in a white paper, Copyright and Permissions Culture in Software Preservation and Its Implications for the Cultural Record, published by the Association of Research Libraries and available at their website.Next, they convened a set of conversations, which led to:
A consensus built up over the course of these meetings was then distilled into a set of principles and limitations for the responsible exercise of fair use in software preservation.Finally, the consensus was reviewed by a panel of legal experts who concluded it was "within the realm of reasonable legal interpretation".
Preservationists should now be able to use this code to persuade their institution's lawyers that the normal things they need to do to preserve software are reasonable exercise of their fair use rights.
DMCA ExemptionThe SPN, with the support of Harvard's CyberLaw Clinic, and ALA, ARL and ACRL petitioned the Copyright Office in their most recent triennial 1201 exemption process for A proposed exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technological protection measures on lawfully acquired software for the purposes of preserving software and software-dependent materials. Amazingly, this broad exemption was granted. In a joint effort of SPN and Harvard's CyberLaw Clinic, Kee Young Lee and Kendra Albert have written A Preservationist's Guide to the DMCA Exemption for Software Preservation:
The DMCA anti-circumvention provision prohibits circumvention of technological protection measures (TPMs) that control access to copyrighted works. More commonly known as DRM (short for "digital rights management"), these TPMs control access to computer programs by requiring a user to do something before allowing the user to use the program. ... These requirements inhibit efforts to preserve software because preservationists may not be able to meet the requirements of outdated TPMs. Old TPMs may require using obsolete operating systems, or inserting floppy disks despite modern computers no longer supporting floppy disk drives.Note the connection with Fair Use.
Without an exemption, librarians or preservationists circumventing these TPMs may be subject to legal liability under the DMCA. Fortunately, the Software Preservation Network has obtained temporary exemptions for digital preservation. These exemptions remove this legal liability for circumventing a TPM, provided that certain conditions are met. And while the text of the exemption itself only mentions TPMs that "control access" to copyrighted works, the exemption also covers "copy controls" that prevent full copying of content stored on storage media ... Note that the exemptions do not remove legal liability for copyright infringement of the underlying software itself, so as we discuss in more depth below, you'll still want to follow the best practices for fair use or obtain permission from the copyright owner in order to avoid copyright liability.
Section 1201 exemptions are valid for only three years, and must be re-petitioned in each cycle, It is therefore important that institutions preserving software both take advantage of the current exemption, and document that they have done so, to support the 2021 petition.