Software preservationists seek exception to copyright law

It used to be that technical bits impeded your ability to preserve old software. Today a bigger obstacle is the law.

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Data archivists who operate a coalition called the Software Preservation Network are working on new projects in 2018, including a legal effort to work with rather than against software anti-piracy organizations, while also seeking new sources of funding after their grant ended late last year.

Preservation is increasingly difficult, network officer Jessica Meyerson noted a year ago, not only as programs move to cloud hosting and modular code bases, but also as aggressive licensing gradually becomes a greater burden than the technical copy protection of traditionally packaged programs.

This lead to the network's most challenging project--their desire for fair-use exemptions to the Digital Millennium Copyright Act (DMCA), so that archivists may lawfully circumvent copyright protection in order to preserve applications that might otherwise be lost as the computer field marches forward. The network members' goal is not just nostalgia--it's to ensure their ability to keep working with historical data created by applications from the 2000s, 1990s, 1980s, or even older.

Attorneys from the Berkman Klein Center for Internet & Society, based at Harvard University, are representing the network's interests and will testify at U.S. Copyright Office hearings in April 2018, Meyerson said. They noted recently in a formal reply to public comments that five organizations that exist to protect software companies--the Business Software Alliance, the Entertainment Software Association, The App Association, DVD Copy Control Association, and Advanced Access Content System Licensing Administrator--are all on the record as supporting the exemption in principle.

SEE: Software usage policy (Tech Pro Research)

Another vendor organization, the Software & Information Industry Association (SIIA), took a harder line against the exemption. SIIA argued that the network is not presenting strong enough evidence for the necessity of copyright circumvention. SIIA staff did acknowledge the prospect of an exiguous exception for truly obsolete software such as the kind originally shipped on floppy disk or CDs, unable to run on modern hardware, not available any other way, and not attributable to any specific copyright holder.

Meyerson said her peers hope that independent software vendors will understand the need for software preservation and encourage trade associations to see the network as a friend, not a foe. It's also feasible that research into preservation methods could be shared back or even jointly developed with companies in the IT storage, backup, and archiving fields. "There's definitely some valuable exchange that can take place there," she noted.

Considering the generally neutral-to-positive feedback, "It's always hard to predict where the Register of Copyrights will come out, but we're hopeful that we can obtain an exemption that allows cultural institutions to preserve software without the chilling effects of [the DMCA]," Berkman Klein Center attorney Kendra Albert said. The government's decision is likely to arrive this fall, Albert said.

The network is also assisting with projects from similar organizations, as long as their goals align and funding can be shared with the network until it obtains a long-term income source of its own, Meyerson explained.

There are three current projects: Yale University's research into emulation-as-a-service; a project from multiple institutions to bring software preservation into mainstream research; and the Association of Research Libraries' Code for Best Practices in Fair Use.

The Software Preservation Network is also sponsoring educational web seminars in April 2018 and May 2018.

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