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.

Software Sustainability and Preservation: Implications for Long-term Access to Digital Heritage

Software Sustainability and Preservation: Implications for Long-term Access to Digital Heritage. Jessica Meyerson, David Rosenthal, Euan Cochrane. Panel, iPres 2016.  (Proceedings p. 294-5 / PDF p. 148).

     Digital content requires software for interpretation, processing, and use, and sustaining the software functionality beyond its normal life span is an issue. It may not be possible, economically or otherwise, for the software vendors to maintain software long term. Virtualization and emulation are two techniques that may be viable options for long-term access to objects, and there are currently efforts to preserve essential software that is needed to access or render digital content. Some efforts are the earlier KEEP Emulation Framework project, and currently the bwFLA Emulation as a Service (EaaS) project has demonstrated the ability to provide access to emulated and virtualized environments via a simple web browser and as part of operational archival and library workflows.

Memory institutions and software vendors have valuable digital heritage software collections that need to be maintained. A growing number of digital objects require software in order to be used and viewed. Yale University, the Society of American Archivists and others are working to resolve legal barriers to software preservation practices. The preservation community "continues to evolve their practices and strive for more comprehensive and complete technical registries to support and coordinate software preservation efforts".

Digital Preservation Matters.

Research Software Sustainability: Report on a Knowledge Exchange Workshop

Research Software Sustainability: Report on a Knowledge Exchange Workshop. Simon Hettrick. The Software Sustainability Institute. February 2016; 3 March 2016.   [PDF]
     "Without software, modern research would not be possible since it is connected to the software that is used to generate results." Overlooking software will put at risk the reliability and the ability to reproduce the research itself. Like the research, and any other tool, software must stand up to the same scrutiny. It is not easy to define software sustainability, but it is the practices that allow software to continue to function as expected in the future.  This is neither easy nor straightforward. Software has a lifecycle: it is conceived, matures and decays. Not all software should be sustained, we should  concentrate on sustaining software that is most useful. Software is always reliant on other software in order to work., including operating system, system libraries, and other necessary packages. Any change or decay at any level can affect the operation of the software higher up the stack.  "If we attempt to preserve software, it quickly becomes out of step with its dependent software."

Definitions:

• Research software: software developed within academia for the purposes of research, particularly to generate, process and analyze results.
• Software sustainability: the technical and non-technical practices that allow software to continue to operate as expected in the future. A constant level of effort is required to maintain the software’s operation.
• Software preservation: an approach to extend the lifetime of software that is no longer actively maintained.
• Software archiving: one important aspect of software preservation. It is the process of storing a copy of software so that it may be referred to in the future.

Approaches to software sustainability and preservation

1. Encapsulation. Preserve the original hardware and software to ensure that the software continues to operate (an example is recomputation.org)
2. Emulation. Emulate the original hardware and operating environment so that the software continues to operate
3. Migration. Update the software to maintain the original functionality and transfer it to new platforms as necessary to prevent obsolescence
4. Cultivation. Keep the software up to date by adopting an open development model that allows new contributors to be brought on board
5. Hibernation. Preserve knowledge of how to resuscitate the software’s exact functionality at a later date
6. Deprecation. Formally retire the software. Unlike hibernation, no time is invested into preparations to make it easier to resuscitate the software
7. Procrastination. Do nothing

Key recommendations

1. Raise awareness of the fundamental role of software in research
2. Recognize research software as a valuable research object
3. Promote software sustainability
4. Embed software sustainability skills in the research community
5. Create organizations as focal points for software sustainability expertise

Benefits include:

1. Trusted research
2. Increased rate of discovery
3. Increased return on investment
4. Research data remains readable and usable

Digital Preservation Matters.