Fair Use and the Future of Digital Culture

by Patricia Aufderheide

The latest code of best practices in fair use from the Center focuses on the future of digital culture. Fair use helps the people who preserve obsolete or abandoned software do their work more effectively.

Resurrecting dead software.

The software tools we use to make culture in a digital era age quickly, and sometimes wink out along with their companies. WordPerfect, Flash, that spreadsheet software you used for a research project in the 1990s, the platform on which your prof’s hypertext was once designed—it’s all obsolete. If you want to read that WordPerfect document, view something made in Flash, reproduce research results done in an obsolete format, or study early digital art or literature, you will need a copy of software that someone carefully preserved.

But the people who do this work in libraries, archives and museums face daily challenges from copyright to getting their work done.

Five common problems.

When software preservationists get a copy of old software—maybe it’s from EBay, maybe someone donated it—can they legally make a preservation copy of it? That’s standard archival practice, but it’s also a copyright violation. That is, unless you can invoke fair use, the right to copy copyrighted work if it’s for a different purpose than the work is on the market for, and you use the appropriate amount.

Sometimes making a record of how software processes show up on a screen is an important part of preservation. But is making that record stepping on the rightsholder’s copyright? What would responsible practice of fair use be?

Of course, there’s no point in saving old software if no one can use it. But letting people use it could violate someone’s copyright, unless you can apply fair use. What should an archivist do to minimize the scary risk that someone might sue? Do researchers have to show up at a physical archive to access digital tools, or could they access them remotely?

Libraries, archives and museums rarely have one of everything, and they want to be able to share their digital assets with each other. But how to do that, without violating copyright? What’s the best way to do it, if you can employ fair use?

Source code—the actual human-readable code itself—is an important object of study. It shows exactly how something was put together. But it’s also the raw data that could allow you to build another piece of software like it, or build something else from it. Both of those acts would violate copyright. How should software preservationists treat access to source code, to stay as safe as possible while meeting the needs of researchers?

A copyright headache.

Last year, the Alfred P. Sloan Foundation gave a grant to the Association of Research Libraries to explore how fair use could help software preservationists. I had the privilege of working on the team—which also included ARL’s Director of Public Policy Initiatives Krista Cox, the University of Virginia’s Director of Information Policy Brandon Butler and Washington College of Law professor emeritus Peter Jaszi—to learn about the problem.

We issued a report showing that copyright problems are indeed a major headache for software preservationists.

A code as a cure.

Over this year, we worked with small groups of veteran software preservationists to create the Code of Best Practices in Fair Use for Software Preservation. This code, released for the launch of the Association of Research Libraries’ annual meeting, synthesizes the consensus of professionals in the field about the five most common kinds of problems they face in employing fair use.

Over the next year, we’ll be working with memory institutions of all kinds, to make sure that software preservationists know about their new Code. It’s a cure for copyright headaches, and make sure that good work gets done well, without stepping on any copyright holder’s rights.


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