February 22, 2018
APTrust remains very active in the development of the Software Preservation Network. Here is an update of some interesting developments on the legal sides of software preservation issues (language comes from the SPN team):
Over the course of the last couple of years, the Software Preservation Network has worked in close collaboration with legal scholar-practitioners to better understand the legal landscape regarding software preservation/curation activities. Therefore, we are excited and grateful to announce the current work of two complementary efforts to clear a path forward for cultural memory practitioners, administrators and users to lawfully preserve, reuse and share legacy software.
In addition to our ongoing research collaboration (with sincere appreciation to Chris Bavitz, Managing Director of the Cyberlaw Clinic), The Cyberlaw Clinic at Harvard Law School (part of the Berkman Klein Center for Internet and Society), is currently representing the Software Preservation Network (SPN) and the Library Copyright Alliance (LCA) in the proceeding for exemptions to the anti-circumvention clause. In December 2017 Kendra Albert, Clinical Instructional Fellow at the Cyberlaw Clinic, and Cyberlaw Clinic students Evelyn Chang and Anderson Grossman filed a petition requesting that the Library of Congress Copyright Office grant cultural heritage/memory institutions an exemption to circumvent technological protection measures in order to preserve computer programs and computer program-dependent materials. Mx. Albert and Cyberlaw Clinic students Erin Thomas and Austin Bohn will continue the research, writing and representation of SPN and LCA in the 1201 process through the Spring of 2018. We cannot overemphasize how much SPN and the broader digital preservation community appreciates their engagement, thoughtfulness and advocacy. Now that the initial petitions have been filed, we are currently waiting on opposing petitions and/or responses to the petition filed. Reply comments from the Cyberlaw Clinic team are due in March of 2018. Public hearings will be scheduled for April.
The Cyberlaw Clinic blog post about the 1201 filing can be found here at https://clinic.cyber.harvard.edu/2018/01/02/software-preservation-comments-filed-in-1201-rulemaking/.
In 2017, the Alfred P. Sloan Foundation awarded the Association of Research Libraries a research grant to develop community best practices surrounding software preservation as a way to outline clear guidelines for the application of fair use to the preservation of software and software dependent materials. Ultimately, the project will result in a Code of Best Practices in Fair Use for Software Preservation. This month, the first report from the project was published,and it is entitled The Copyright Permissions Culture in Software Preservation and Its Implications for the Cultural Record. The report reflects the synthesis of the literature as well as extensive first-person interviews with researchers, digital preservation practitioners and other software preservation/curation stakeholders. The report documents widespread frustration around copyright issues in the software preservation community, and suggests deeper engagement with fair use as a possible solution. Similar to the information exchange with Mr. Bavitz, Mx. Albert, Ms. Chang, Mr. Grossman and several previous cohorts of Cyberlaw Clinic students – SPN is thrilled to support the work of the project and the research team. We’d like to offer a huge thanks to co–principal investigators Patricia Aufderheide of the American University School of Communication, Brandon Butler of the University of Virginia Library, Krista Cox of the Association of Research Libraries, copyright scholar Peter Jaszi and the Alfred P. Sloan Foundation.
The Association of Research Libraries blog post about the Code of Best Practices project can be found here at http://www.arl.org/focus-areas/copyright-ip/fair-use/code-of-best-practices-in-fair-use-for-software-preservation.