Software Preservation Network: Legal and Policy Aspects of Software Preservation

By Brandon Butler

This is the second post in our series on the Software Preservation Network 2016 Forum.
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Software Preservation Network logoThe legal landscape surrounding software is a morass. (That’s a legal term of art; Black’s Law Dictionary tells us it is synonymous with “dumpster fire” and “Trump rally.”) Do you own the software on your computer? (Some of it, maybe, but some you merely lease.) Can you resell it? (In some cases you cannot.) Can you repair it? (Kinda! Or not….) Can you crack the DRM on software for research? (In a few, narrowly-defined contexts.) When are you bound by a 1000-page software license agreement—when you break a printed seal on a CD-Rom, check a box during an app store checkout process, or ignore the small print on a download website? (Don’t even try to sort that one; anarchy prevails.) Should some software even be copyrightable? (Don’t ask!) And on and on.

Those are just the questions we could ask about software in the abstract. Things get even more interesting when you talk about preserving and providing broad access to specific software titles, especially old ones. And so we did, at the very first session of the Software Preservation Network (SPN) Forum in Atlanta. (Notes and resources for the session are here.)

Our intrepid guides through this fog were Zach Vowell of California Polytechnic University, a Co-PI on the Software Preservation Network project, and Henry Lowood of Stanford University, whose Cabrinety Archive is a well-known trove of software history.

Zach kicked off the discussion with a brief description of the scope of the SPN’s IMLS-funded investigation. He then described what they had learned so far from the advice of Harvard Law School’s Cyberlaw Clinic, which SPN retained to help map the legal landscape. The Clinic identified several areas of law implicated by software preservation, and handicapped their relevance:

  • Copyright – the chief concern by far.
  • Contract law issues – another relatively big issue, given the prevalence of software license agreements.
  • The Digital Millennium Copyright Act (DMCA) – significant where software is protected by DRM (like dongles, encryption, and so on).
  • Trademark dilution – because providing access to old software associated with valuable trademarks might harm the value of the brand. (This has been litigated and seems less worrisome, at least to me.)
  • Patent – a much shorter duration than copyright, and harder to obtain, but some software may be protected by patent.
  • The Computer Fraud and Abuse Act (CFAA) – an anti-hacking statute that mostly addresses unauthorized interaction with servers and networks, so only an issue for software that accesses a third-party server.

Zach suggested a two-tier/hybrid approach had emerged from the Clinic’s analysis:

  1. For older, orphaned, and relatively low-risk works (obscure or out-of-business publishers, etc.), fair use should in principle allow many research and preservation uses. The Clinic said there has not been a case specifically on point, but the general principles of fair use should favor archives.
  2. For newer works, with larger commercial owners still in business, libraries might pursue licenses to allow preservation and research use.

Henry Lowood brought the discussion down from abstract issues to more concrete questions he has faced in working with a substantial collection of software. Chief among them: what should a software deed of gift look like? Well, ideally it should convey copyrights or broad use rights (samples from Stanford treat IP ownership expressly and are in the Google Drive folder for this session, and the ARL Model Deed of Gift also does this well) as well as the physical property. This is often impossible, however, because software, like other media given to libraries, is often donated by mere owners of copies who have no copyrights to convey. For digital objects, copies without rights are especially problematic.

Perhaps the most remarkable part of Lowood’s discussion was his account of the relative futility of searching for copyright owners and asking permission. Like others before him, Lowood reported finding very few possible owners, and getting even fewer useful responses. Indeed, software seems to have a special version of the orphan works problem: even when you find a software publisher, they are often unable to say whether they still own the copyright, citing confusing, long-lost, and short-term agreements with independent developers. Lowood said that they could only find putative owners around 25-30% of the time, and, when found, 50% would disclaim ownership.

Discussion after the panel raised several interesting points. I suggested the use of “quitclaim deeds” that would allow putative owners to grant permission without requiring them to promise they were, indeed, the owners. Others suggested a clearinghouse of information about rights and of documents to use for licensing and transfer of software and IP. Participants also suggested leveraging current licensing negotiations with big firms to obtain perpetual rights (or “life of file” rights—models from video and ebook licensing were discussed), and perhaps rights to older titles. In general, it was agreed that advocacy was needed to put this issue on the radar for university counsel and others involved in negotiating software deals. There was agreement that reading room access should be an absolute floor of access, and that the community should push to adopt “virtual” reading rooms online as a reasonable extension of that practice into the online realm.

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Brandon Butler is the first Director of Information Policy at the University of Virginia Library. He provides guidance and education to the Library and its user community on intellectual property and related issues, and advocates on the Library’s behalf for provisions in law and policy at the federal, state, local, and campus level that enable broad access to information in support of education and research. Butler is the author or co-author of a range of articles, book chapters, guides, presentations, and infographics about copyright, with a focus on libraries and the fair use doctrine.

Software Preservation Network Series

By Jessica Meyerson and Zach Vowell

This post is the first in our series on the Software Preservation Network 2016 Forum.

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Software Preservation Network logoThe Software Preservation Network (SPN) 2016 Forum was held Monday, August 1st, 2016 on the Georgia State University campus in downtown Atlanta, Georgia. The SPN 2016 Forum theme, “Action Research: Empowering the Cultural Heritage Community and Mapping Out Next Steps for Software Preservation” reflected the mission of the Software Preservation Network (SPN) — to solicit community input and build consensus around next steps for preserving software at scale as part of the larger effort to ensure long-term access to digital objects. Over the next few weeks, bloggERS will be publishing a series of posts about the Forum, written by attendees. This blog post series speaks to the core beliefs of the Software Preservation Network team:

  • Reflection is essential to our practice. Our Volunteer Blog Post Authors represent a team of Reflective Practitioners — helping us to derive and articulate insights from their embodied experience as Forum attendees and participants.  
  • The practice of critical reflection around software preservation must incorporate members from complementary domains to actively participate in a coordinated effort to develop a sustainable, national strategy for proprietary software licensing and collection — pulling heavily from the collective, embodied experience and expertise of researcher-practitioners in law, archives, libraries, museums, software development and other domains.

Community participation was key to the Forum’s success and proposals were invited on topics including:

  • Current collaborations/consortial efforts
  • Collective software licensing approaches
  • Preservation efforts
  • Emulated or virtualized access options
  • Organizational structures that have worked for other multi-institutional initiatives that may work for software preservation

Our call for proposals received an enthusiastic response — so much so, that we embarked on a happy experiment to push the conversation forward, and closer to actionable next steps. We asked our participants to scrap their original proposal and work together in teams to identify overlaps/intersections across projects AND design an activity to facilitate meaningful engagement among attendees. They all said yes — to ambiguity, to experimentation, and to dedicating more of their time and energy towards making the Forum a valuable experience. The final Forum schedule can be found here, but for a preview of what you’ll be hearing about over the course of this blog post series, below is a list of sessions and their participants:

ICE BREAKER ACTIVITY

SESSION 1 – Legal and Policy Aspects of Software Preservation

  • Henry Lowood – Stanford University
  • Zach Vowell – Software Preservation Network

SESSION 2 – Current Collecting, Processing of and Access to Legacy Software

  • Glynn Edwards – Stanford University
  • Jason Scott – Internet Archive
  • Doug White – National Software Reference Library
  • Paula Jabloner – Computer History Museum

SESSION 3 – Research and Data on Software Preservation

  • Micah Altman – Massachusetts Institute of Technology
  • Jessica Meyerson & Zach Vowell – Software Preservation Network

BRAINSTORMING BREAK

SESSION 4 – Partnerships Forming Around Software Preservation

  • Aliza Leventhal – Sasaki Associates
  • Tim Walsh – Canadian Centre for Architecture
  • Nicholas Taylor – Stanford University
  • Ryder Kouba – The American University in Cairo

SESSION 5 – Community Roadmapping

As you read the posts in this series, if you are inspired to get involved with this growing community of dedicated colleagues, there are several ways to dive in:

  • Submit a use case. We ask, for the sake of easier analysis/comparison (finding common themes across use cases) that you follow this general structure.
  • We are scheduled to send out a version of our software preservation community roadmap on these listservs — please let us know if there are other groups of folks that might be interested.
  • Sign up to participate in the working groups that have been formed around the community roadmap.

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Zach Vowell has worked with born-digital collection material since 2007, and has served as Digital Archivist at at the Robert E. Kennedy Library, California Polytechnic State University, San Luis Obispo since 2013. At Cal Poly, he is co-primary investigator of the IMLS-funded Software Preservation Network project, and leads digital preservation efforts within Kennedy Library’s Special Collections. Zach has long recognized the need to strategically preserve software in order to provide long-term access to archival collections.

Jessica Meyerson is Digital Archivist at the Briscoe Center for American History at the University of Texas in Austin, where she is responsible for building infrastructure to support digital preservation and access. Jessica earned her M.S.I.S. from the University of Texas at Austin with specializations in digital archives and preservation. She is Co-PI on the IMLS-funded Software Preservation Network – a role that allows her to promote the essential role of software preservation in responsible and effective digital stewardship.

Call for Posts: International Perspectives on Digital Preservation

The BloggERS editorial team is planning a series of blog posts to present an international view on digital preservation, and we would like to invite you to participate.

We like to think of our topical blog series as a chance for digital archivists to share information about issues they are facing, solutions they have implemented, and new projects they are working on. We’ve had some great series in the past on digital processing and access, so we thought it might be valuable to get perspectives on digital preservation from various countries and cultures.

We have several goals that we hope the series might reach:

  1. We want to highlight similarities across borders, which will foster information sharing and can lead to fruitful collaborations;
  2. We want to discover differences in practice based on local laws, values, practices, histories; differences in practice give fresh perspective into one’s own work as well as provide new ideas for moving forward;
  3. We want to use the ERS blog to facilitate in the development of an international dialogue about the values, technologies, and practices that shape digital preservation needs across the globe;
  4. We hope to encourage future collaborative relationships by giving repositories worldwide a chance to describe their problems and solutions;
  5. We want to offer the blog as a common space for discussions of digital preservation with international points of view.

We want this series of posts to be useful to anyone working anywhere around the globe, not just in the United States. If you’ve run into issues specific to your country or culture and want to describe your issues and share your solutions, or if you’ve got a cool project that might interest an international audience, we’d love to hear from you.

Contact us with post ideas at ers.mailer.blog@gmail.com

Also, check out our Guidelines for Writers.

The Best of BDAX: Five Themes from the 2016 Born Digital Archiving & eXchange

By Kate Tasker

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Put 40 digital archivists, programmers, technologists, curators, scholars, and managers in a room together for three days, give them unlimited cups of tea and coffee, and get ready for some seriously productive discussions.

This magic happened at the Born Digital Archiving & eXchange (BDAX) unconference, held at Stanford University on July 18-20, 2016. I joined the other BDAX attendees to tackle the continuing challenges of acquiring, discovering, delivering and preserving born-digital materials.

The discussions highlighted five key themes to me:

1) Born-digital workflows are, generally, specific

We’re all coping with the general challenges of born-digital archiving, but we’re encountering individual collections which need to be addressed with local solutions and resources. BDAXers generously shared examples of use cases and successful workflows, and, although these guidelines couldn’t always translate across diverse institutions (big/small, private/public, IT help/no IT help), they’re a foundation for building best practices which can be adapted to specific needs.

2) We need tools

We need reliable tools that will persist over time to help us understand collections, to record consistent metadata and description, and to discover the characteristics of new content types. Project demos including ePADD, BitCurator Access, bwFLA – Emulation as a Service, UC Irvine’s Virtual Reading Room, the Game Metadata and Citation Project, and the University of Michigan’s ArchivesSpace-Archivematica-DSpace Integration project gave encouragement that tools are maturing and will enable us to work with more confidence and efficiency. (Thanks to all the presenters!)

3) Smart people are on this

A lot of people are doing a lot of work to guide and document efforts in born-digital archiving. We need to share these efforts widely, find common points of application, and build momentum – especially for proposed guidelines, best guesses, and continually changing procedures. (We’re laying this train track as we go, but everybody can get on board!) A brilliant resource from BDAX is a “Topical Brain Dump” Google doc where everyone can share tips related to what we each know about born-digital archives (hat-tip to Kari Smith for creating the doc, and to all BDAXers for their contributions).

4) Talking to each other helps!

Chatting with BDAX colleagues over coffee or lunch provided space to compare notes, seek advice, make connections, and find reassurance that we’re not alone in this difficult endeavor. Published literature is continually emerging on born-digital archiving topics (for example, born-digital description), but if we’re not quite ready to commit our own practices to paper magnetic storage media, then informal conversations allow us to share ideas and experiences.

5) Born-digital archiving needs YOU

BDAX attendees brainstormed a wide range of topics for discussion, illustrating that born-digital archiving collides with traditional processes at all stages of stewardship, from appraisal to access. All of these functions need to be re-examined and potentially re-imagined. It’s a big job (*understatement*) but brings with it the opportunity to gather perspective and expertise from individuals across different roles. We need to make sure everyone is invited to this party.

How to Get Involved

So, what’s next? The BDAX organizers and attendees recognize that there are many, many more colleagues out there who need to be included in these conversations. Continuing efforts are coalescing around processing levels and metrics for born-digital collections; accurately measuring and recording extent statements for digital content; and managing security and storage needs for unprocessed digital accessions. Please, join in!

You can read extensive notes for each session in this shared Google Drive folder (yes, we did talk about how to archive Google docs!) or catch up on Tweets at #bdax2016.

To subscribe to the BDAX email listserv, please email Michael Olson (mgolson[at]stanford[dot]edu), or, to join the new BDAX Slack channel, email Shira Peltzman (speltzman[at]library[dot]ucla[dot]edu).

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ktasker-profile-picKate Tasker works with born-digital collections and information management systems at The Bancroft Library, University of California, Berkeley. She has an MLIS from San Jose State University and is a member of the Academy of Certified Archivists. Kate attended Capture Lab in 2015 and is currently designing workflows to provide access to born-digital collections.

bloggERS! has gone fishin’

We’re off to SAA! Will you be there too? Check out our list of ERS-recommended sessions on Sched.

If you can’t make it this year, then follow along on Twitter with #SAA16!

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People fishing on Green Lake, circa 1950s. Item 31415, Ben Evans Recreation Program Collection (Record Series 5801-02), Seattle Municipal Archives

 

We’ll be back soon with recaps from recent conferences and plenty of other good stuff.

 

Building a “Computational Archival Science” Community

By Richard Marciano

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When the bloggERS! series started at the beginning of 2015, some of the very first posts featured work on “computer generated archival description” and “big data and big challenges for archives,” so it seems appropriate to revisit this theme of automation and management of records at scale and provide an update on a recent symposium and several upcoming events.

Richard Marciano co-hosted a recent “Archival Records in the Age of Big Data” symposium. For more information about the recent Symposium, visit: http://dcicblog.umd.edu/cas/. The three-day program is listed online and has links to all the videos and slides. A list of participants can also be found at http://dcicblog.umd.edu/cas/attendees. The objectives of the Symposium were to:

  • address the challenges of big data for digital curation,
  • explore the conjunction of emerging digital methods and technologies,
  • identify and evaluate current trends,
  • determine possible research agendas, and
  • establish a community of practice.

Richard Marciano and Bill Underwood will be further exploring these themes at SAA in Atlanta on Friday, August 5, 9:30am – 10:45am, session 311, for those ERS aficionados interested in contributing to this emerging conversation. See: https://archives2016.sched.org/event/7f9D/311-archival-records-in-the-age-of-big-data

On April 26-28, 2016 the Digital Curation Innovation Center (DCIC) at the University of Maryland’s College of Information Studies (iSchool) convened a Symposium in collaboration with King’s College London. This invitation-only symposium, entitled Finding New Knowledge: Archival Records in the Age of Big Data, featured 52 participants from the UK, Canada, South Africa and the U.S. Among the participants were researchers, students, and representatives from federal agencies, cultural institutions, and consortia.

This group of experts gathered at Maryland’s iSchool to discuss and try to define computational archival science: an interdisciplinary field concerned with the application of computational methods and resources to large-scale records/archives processing, analysis, storage, long-term preservation, and access, with the aim of improving efficiency, productivity and precision in support of appraisal, arrangement and description, preservation and access decisions, and engaging and undertaking research with archival material.

This event, co-sponsored by Richard Marciano, Mark Hedges from King’s College London and Michael Kurtz from UMD’s iSchool, brought together thought leaders in this emerging CAS field:  Maria Esteva from the Texas Advanced Computing Center (TACC), Victoria Lemieux from the University of British Columbia School of Library, Archival and Information Studies (SLAIS), and Bill Underwood from Georgia Tech Research Institute (GTRI). There is growing interest in large-scale management, automation, and analysis of archival content and the realization of enhanced possibilities for scholarship through the integration of ‘computational thinking’ and ‘archival thinking.

To capitalize on the April Symposium, a follow-up workshop entitled Computational Archival Science: Digital Records in the Age of Big Data, will take place in Washington D.C. the 2nd week of December 2016 at the 2016 IEEE International Conference on Big Data. For information on the upcoming workshop, please visit: http://dcicblog.umd.edu/cas/ieee_big_data_2016_cas-workshop/. Paper contributions will be accepted until October 3, 2016.

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Richard is a professor at Maryland’s iSchool and director of the Digital Curation Innovation Center (DCIC). His research interests include digital preservation, archives and records management, computational archival science, and big data. He holds degrees in Avionics and Electrical Engineering, a Master’s and Ph.D. in Computer Science from the University of Iowa, and conducted a Postdoc in Computational Geography.

Get to know the candidates: Lora Davis

The 2016 elections for Electronic Records Section leadership are upon us! Over the next two weeks, we will be presenting additional information provided by the 2016 nominees for ERS leadership positions. For more information about the slate of candidates, you can check out the full 2016 ERS elections site. ERS Members: be sure to vote! Polls are open July 8 through the 22!

Candidate name: Lora Davis

Running for: Steering Committee

What made you decide you wanted to become an archivist?

This question assumes a discrete “Aha!” moment, which, for me at least, never really happened. I like to say that archives found me, and not the other way around. I was first exposed to the archives (the place, if not the profession) when, as a 17-year-old undergraduate at Susquehanna University, I was awarded a university assistantship that placed me in the employ of a long-serving member of the Department of History, who had undertaken to write the history of the university. Following a brief tour (“My Moody Blues cassettes are in this drawer here, feel free to listen!”) and with a copy of James O’Toole’s Understanding Archives and Manuscripts (1990) in hand, I set about processing the papers of two former university presidents. Seven years later, after completing a master’s in history and opting to leave my PhD program, the archives (this time both place and profession) found me again when the Manuscripts Unit of the University of Delaware Library’s Special Collections department decided to take a chance and employ a grad school dropout at the height of the 2008 economic collapse. This time I was hooked for good. I went on to earn my MLIS online while working my full-time paraprofessional position at Delaware, and have since held professional positions at Colgate University and Johns Hopkins University. It took me a little while to figure it out, but, being an archivist provided me with the balance and variety of work I’d been longing for – the theory and intellectual work of a scholar, the interaction with people I’d missed as a graduate student researcher, the connection to history that had driven my prior coursework, and, perhaps most of all, the exposure to and engagement with emerging technologies I’d missed as a computer hobbyist turned grad student.

What is one thing you’d like to see the Electronic Records Section accomplish during your time on the steering committee?

Above all, I would like to see the Electronic Records Section serve as a welcoming and valuable resource to *all* archivists. In my career I have worked at a medium-sized partially public-funded university, a small liberal arts college, and a private research university, and worked on paper-based and electronic manuscript and university records’ collections, so I appreciate the variety of funding models, resource levels, institutional priorities, and individual knowledge and time we must all strive to balance and leverage in our day-to-day work. Across the profession it is still rare for someone to have the luxury of focusing day in and day out on electronic records; however, it is by no means rare for a 21st century archivist to encounter records of enduring value that exist only in digital form. By striving to be an open, welcoming, responsive, and member-driven community resource for all archivists, the Electronic Records Section can help meet the daily operational needs of its members (e.g. demystifying electronic records jargon and workflows, providing case studies of both successes and failures, serving as a non-judgmental sounding board for new and experienced archivists alike), while also helping to propel the profession forward.

What is your favorite GIF?

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Get to know the candidates: Brian Dietz

The 2016 elections for Electronic Records Section leadership are upon us! Over the next two weeks, we will be presenting additional information provided by the 2016 nominees for ERS leadership positions. For more information about the slate of candidates, you can check out the full 2016 ERS elections site. ERS Members: be sure to vote! Polls are open July 8 through the 22!

Candidate name: Brian Dietz

Running for: Steering Committee

What made you decide you wanted to become an archivist?

All current contexts–social, cultural, economic–are historically contingent. We examine those contingencies, often with the goal of exposing power dynamics, through historical inquiry. Support such critical work is what excited me about becoming an archivist.

What is one thing you’d like to see the Electronic Records Section accomplish during your time on the steering committee?

I’m really interested in the idea of more of us making our documentation widely available so that it becomes a little bit easier for some folks to start digital archiving programs and others to enhance existing ones. The ERS could lead an effort around this kind of sharing.

What is your favorite GIF?

I love how affirming this one is:

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Get to know the candidates: Blake Graham

The 2016 elections for Electronic Records Section leadership are upon us! Over the next two weeks, we will be presenting additional information provided by the 2016 nominees for ERS leadership positions. For more information about the slate of candidates, you can check out the full 2016 ERS elections site. ERS Members: be sure to vote! Polls are open July 8 through the 22!

Candidate name: Blake Graham

Running for: Steering Committee

What made you decide you wanted to become an archivist?

I love being asked this question. I started my career working as a graduate assistant at a university archives about six years ago. At the time, I was knee-deep in the curriculum – studying southern identity and slavery. I was enchanted by historiography, and discovering how historians debate about the interpretation, nature, and implication of primary source materials. My coursework, as well as my job responsibilities, were related to southern history. While working at the university archives, arranging a nineteenth-century manuscript collection, I stumbled across a slave pamphlet. For anyone unfamiliar, these were handouts for slave-trading events in the antebellum South. The text and imagery included horrific details about physique and “background information” on slaves. I buckled after reading the pamphlet. Handling and reading this document was a powerful experience for me, to say the least. I brought the item to the director, and she broke down crying as well. Because of this, along with a long-list of “encounters in the archives,” I have a better understanding of the power of the written record. My work allows me to continue exploring the relationship between the written record and the human experience. This is why I work in archives, and why I love my work.

What is one thing you’d like to see the Electronic Records Section accomplish during your time on the steering committee?

I admire and appreciate all of the work in BloggERS – I believe it is a gateway for collaboration and innovation among our professional communities. If I was asked about foreseeable goals and accomplishments, I would take a bet on ERS leaders proactively seeking different voices to participate in the blog. In 2015-2016, roughly 80% of authors and ERM discussions on BloggERS come from university settings – a percentage that is also reflective of the Section’s leadership. To revisit Kyle Henke’s “Get to Know You” post last year, “I see the purpose of this group as a method to facilitate communication and encourage collaboration across the profession.” I also believe one of the best ways to learn how to improve one’s knowledge of, or develop new skills in, a topic of interest is to simply talk about it with colleagues across the profession. I would like to help move BloggERS in this direction by proactively initiating a dialogue between professionals working in a wide range of settings. I think targeted outreach and education is one of the ways we can accomplish collaboration across the profession.

What is your favorite GIF?

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Annual meeting session recommendations, courtesy of ERS

Having trouble deciding between two tantalizing-looking sessions at the Society of American Archivists annual meeting this year? Looking for some recommendations that might tip the scales? Look no further!

The Electronic Records Section has produced a schedule for this year’s conference through its online scheduling tool, Sched. Now you can see the session that may be of interest to ERS members in one place.

The Electronic Records Section mega-schedule is available here.

See something we may have missed? Comment below or email bloggERS! at ers.mailer.blog@gmail.com!