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.

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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.