A Preservationist’s Guide to the DMCA Exemption for Software Preservation

A Preservationist’s Guide to the DMCA Exemption for Software Preservation. Kee Young Lee and Kendra Albert. Software Preservation Network and the Cyberlaw Clinic @ the Berkman Klein Center. December 10, 2018.  [PDF]
     "The Library of Congress recently adopted several exemptions to the Digital Millennium Copyright Act (DMCA) provision prohibiting circumvention of technological measures that control access to copyrighted works. The exemptions went into effect on October 28, 2018 and last until October 28th, 2021. This guide is intended to help preservationists determine whether their activities fall under the new exemption."  The Software Preservation Network has obtained temporary exemptions which remove the legal liability for circumventing technological protection measures for preserving the software or resulting files, provided that certain conditions are met. These exemptions do not remove legal liability for copyright infringement of the underlying software itself.

The guide provides excellent information on the issues and the exemptions. The exemptions are  generally directed to preservation activities  by libraries, archives, and museums, but there are five criteria required in order to claim the exemption. The library, archive, or museum must:

1. Make its collections open to the public or routinely available to unaffiliated outside researchers.
2. Ensure that its collections are composed of lawfully acquired or licensed materials.
3. Implement reasonable digital security measures for preservation activities.
4. Have a public service mission.
5. Have trained staff or volunteers that provide services normally provided by libraries, archives, or museums

In addition, there are requirements for using the preserved software:

• The computer program must have been lawfully acquired.
• The software must no longer be reasonably available in the commercial marketplace.
• The sole purpose of the circumvention activity must be for lawful preservation of the computer program or digital materials that are dependent on a computer program.
• The computer programs cannot be used for commercial advantage.
• Use of the exemptions can only be for non-infringing uses of the software.
• Copies of the computer programs cannot be made available outside of the physical premises of the library, archive, or museum.

These exemptions are only for three years, so evidence of software preservation activities will help to renew the exemptions.

The Guide also includes a DMCA Exemption for Software Preservation Checklist.

Digital Preservation Matters.