Digital culture depends on software—the stuff that opens our slideshows and text documents, that fuels our apps, that underlies our meme and music creation. But software preservation is in crisis. A just-released study shows that copyright is a big obstacle to making sure we get access to yesterday’s technology today. But it doesn’t need to be.

The Copyright Permissions Culture in Software Preservation and Its Implications for the Cultural Record,” released last week by the Association of Research Libraries (ARL), shows that copyright concerns affect many decisions archivists make about software. Center research fellow Patricia Aufderheide is a principal investigator. Fellow PIs are Brandon Butler, librarian at University of Virginia; ARL’s Krista Cox, and American University emeritus law professor Peter Jaszi.

Copyright: the problem?

Software archivists struggle with copyright law. They try without luck to get licenses appropriate to libraries and archives for obsolete software. They make long, expensive hunts for copyright owners in an industry that keeps poor business records. They forgo breaking encryption, for fear of violating the Digital Millennium Copyright Act (DMCA), even though that means leaving software unuseable, and they also avoid efficient digital access approaches such as emulation-as-service.

This makes it difficult for people who study software, or who just need old software to access older media, to use software even when they can find it in an archive. That’s because copyright fears keep archivists from collecting it, properly cataloguing it, or making it available easily to researchers.

Or the solution?

Despite those fears, copyright doesn’t have to be a problem, the report shows. Archivists are under-estimating the power of fair use, the limits of shrink-wrap licensing, and the exemption possibilities of the DMCA. They are over-estimating their own responsibility for researchers’ decisions, and the risk involved in making decisions related to responsible curation of their collections.

Thanks to the Alfred P. Sloan Foundation, which funded this research, the researchers will continue to work through ARL with the Software Preservation Network (which helped initiate this project and find interviewees). They will facilitate an archivist-led code of best practices in fair use. The model of previous such codes, pioneered by the Center for Media & Social Impact and the American University law school, will provide a guide.