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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