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Software Preservation Best Practices in Fair Use to Help Safeguard Cultural Record, Advance Research

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The new Code of Best Practices in Fair Use for Software Preservation provides clear guidance on the legality of archiving legacy software to ensure continued access to digital files of all kinds and to illuminate the history of technology.

This Code was made by and for the software preservation community, with the help of legal and technical experts. The publication provides librarians, archivists, curators, and others who work to preserve software with a tool to guide their reasoning about when and how to employ fair use—the legal doctrine that allows many value-added uses of copyrighted materials—in the most common situations they currently face.

Libraries, archives, and museums hold thousands of software titles that are no longer in commercial distribution, but institutions lack explicit authorization from the copyright holders to preserve these titles or make them available. Memory institutions also hold a wealth of electronic files (texts, images, data, and more) that are inaccessible without this legacy software. The preliminary report released by the project team in February documents high levels of concern among professionals worried that while seeking permission to archive software is time-consuming and usually fruitless, preserving and providing access to software without express authorization is risky. Meanwhile, digital materials languish, and the prospects for their effective preservation dim.

In interviews with the project team, software preservation professionals made it clear that users and uses for legacy software are as various as human inquiry, and will multiply over time. In the words of Jessica Meyerson, a founder of the Software Preservation Network, “our cultural record is increasingly made up of complex digital objects.” Another interviewee invoked technology-investor Marc Andreessen’s argument that “software is eating the world,” observing that access to the digital cultural record is itself dependent on software.

The Code of Best Practices in Fair Use for Software Preservation will help this community overcome legal uncertainty by documenting a consensus view of how fair use applies to core, recurring situations in software preservation. Fair use has become a powerful tool for cultural memory institutions and their users, allowing them to realize the potential of stored knowledge with due respect for the interests of copyright holders. (See the 2012 Code of Best Practices in Fair Use for Academic and Research Libraries.) Fair use holds the same potential where software preservation is concerned, particularly given the transformative nature of the uses described in the Code.

The Code of Best Practices in Fair Use for Software Preservation presents a series of five situations in which librarians, archivists, curators, and others working to preserve software can employ fair use. The Code describes the activities, states the principle informing the choice to employ fair use, and makes clear the limitations of such use—that is, the outer bounds of the community consensus at this time. The five situations covered are: 

  • Accessioning, stabilizing, evaluating, and describing digital objects 
  • Documenting software in operation, and making that documentation available 
  • Providing access to software for use in research, teaching, and learning 
  • Providing broader networked access to software maintained and shared across multiple collections or institutions 
  • Preserving files expressed in source code and other human-readable formats

The Code also includes a brief introduction to software preservation and copyright, an epilogue on the future of software preservation, and two appendices on (1) the fair use doctrine and preservation practice in general and (2) other copyright-related issues related to preservation.

This Code is the result of a project funded by the Alfred P. Sloan Foundation. Co–principal investigators Patricia Aufderheide of the Center for Media & Social Impact at American University’s (AU) School of Communication, Brandon Butler of the University of Virginia Library, Krista Cox of the Association of Research Libraries, and Professor Emeritus Peter Jaszi of the AU Washington College of Law conducted extensive interviews and focus groups with software preservation experts and other stakeholders to produce this Code. The project was coordinated by the Association of Research Libraries (ARL), the Center for Media & Social Impact at AU, and the Program on Information Justice and Intellectual Property at AU Washington College of Law.

Download, read, and use the Code of Best Practices in Fair Use for Software Preservation. The Code will be supported by webinars, workshops, online discussions, and educational materials later this year and in 2019. To stay up to date on news about this project, watch the ARL website, follow us on Facebook or Twitter, or subscribe to our email news lists. For more information, contact Krista Cox, krista@arl.org.

About the Association of Research Libraries

The Association of Research Libraries (ARL) is a nonprofit organization of 125 research libraries in Canada and the US whose mission is to advance research, learning, and scholarly communication. The Association fosters the open exchange of ideas and expertise, promotes equity and diversity, and pursues advocacy and public policy efforts that reflect the values of the library, scholarly, and higher education communities. ARL forges partnerships and catalyzes the collective efforts of research libraries to enable knowledge creation and to achieve enduring and barrier-free access to information. ARL is on the web at ARL.org.

About the Center for Media & Social Impact

Center for Media & Social Impact (CMSI), based at American University’s School of Communication in Washington, DC, is an innovation lab and research center that creates, studies, and showcases media for social impact. Directed by American University Professor Caty Borum Chattoo, CMSI was founded (as the Center for Social Media) in 2001 by American University Professor Patricia Aufderheide. Since 2004, the Center has worked with the Program on Information Justice and Intellectual Property at the Washington College of Law to help creators employ fair use to create more culture. CMSI is on the web at www.cmsimpact.org.

About the Program on Information Justice and Intellectual Property

The Program on Information Justice and Intellectual Property (PIJIP) promotes social justice in law governing information dissemination and intellectual property through research, scholarship, public events, advocacy, and provision of legal and consulting services. The program is a project of the Washington College of Law at American University in Washington, DC. PIJIP is on the web at www.wcl.american.edu/impact/initiatives-programs/pijip/.

About the University of Virginia Library

The University of Virginia (UVA) Library has been the center of the University since its founding by Thomas Jefferson in 1819. UVA is known not only for its extensive library system but also for the work it does in preserving works of scholarship both physical and digital. The UVA Library is also a leader in the creation of digital archives that ensure the safety of scholarship for generations to come. The UVA Library is on the web at www.library.virginia.edu.

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