Oh hello! I’m Brandon Butler, the Law and Policy Advisor for SPN, and this is a new regular-ish blog feature called I am Not Your (Software) Lawyer
The name is apt, because although I am indeed a lawyer, I am not your lawyer! I’ll be writing here about general topics in the law that affect software, including hot topics and current events, but none of what I say here is legal advice. You should talk to your own legal counsel before you take any particular course of action that might raise legal questions. But hopefully, these columns will help you better understand what legal issues may arise in your practice, and how court cases, rule-makings, and proposed legislation might affect you and your institution.

This first column is about a core issue in the law affecting software preservation: the impact of the licensing business model, and in particular of newer models that strongly encourage and even require upgrading old versions. Software is way ahead of the rest of the copyright ecosystem in that it abandoned “true” ownership for a license relationship with consumers much earlier in its evolution. Licenses have terms that seem to tell you what you can and can’t do with particular software titles. What is the import of these documents for preservation? Today we’ll take a particular example and work from there out to the general issue, exploring business models and trying to add some nuance along the way.

Software preservation Twitter lit up a little bit last week with the news that Adobe had sent letters to users of older versions of its Creative Cloud (CC) software suite, warning them of possible legal consequences if they didn’t upgrade to the latest version. 

It feels a little bit like the Orwellian Licensing Hellscape that legal scholars (and sci-fi writers) have been warning about for decades has finally come to pass, but is that fair? What’s going on, here? And what does this kind of letter suggest about the future of software preservation?

Adobe didn’t exactly threaten anyone.

Reporting at Vice and Apple Insider based on the text of the letter and subsequent comments from Adobe suggest that the letter was not a direct legal threat from Adobe, but an admittedly oblique warning that a third party (Dolby, most likely) might have a legal claim against users who continue to use the older versions of Creative Cloud. Unfortunately, Adobe used the framework of their license as a kind of red herring (“you are no longer licensed to use [the old versions]”), but they never actually threatened to take legal action themselves against users. The only risk Adobe specifies in its letter is “potential claims of infringement by third parties,” again, most likely Dolby, which alleges that Adobe itself is in breach of its license to use Dolby IP in the CC Suite.

One thing that’s not quite clear (to me, anyway) is whether the legal liability referenced in the letter is a direct consequence of Dolby’s lawsuit (if Adobe has exceeded its license, then perhaps so, too, have its users, unless they upgrade to the new version, which is not at issue in the litigation), or if the liability is a consequence of Adobe revoking the user’s license for older versions. You can imagine why Adobe might revoke its license for the old versions as part of its litigation strategy: to discourage use of possibly infringing software and contain the possible damages if Dolby wins. In that case, Adobe is more directly connected to the possible legal liability it imputes to users. But even in that case, it seems clear that Adobe is only revoking the license as part of its defense against Dolby, not as part of any effort to put the squeeze on users for its own (direct, financial) benefit.

The upshot, to me, is that we need to check our assumptions about how software publishers might use software licenses against end users, especially cultural heritage institutions. If the Orwellian Licensing Hellscape is a world where licensors use licenses to extract profits from consumers, we aren’t there, yet, in this case. The license is being invoked purely as part of a defense strategy in a dispute with another vendor. Consumers are, at worst, collateral damage. And cultural heritage institutions (as I’ll explain later) are completely off the map.
License Thickets May Be the Real Long-Term Problem for Software (and Everything Else)

Yes, at some deep philosophical level, everything is a remix. But more importantly, for our purposes, almost every more-than-minimally-complex piece of software is a compilation: an amalgamation of elements contributed by employees, contractors, vendors, open source communities, and others, all of whose work is protected by copyright. Who owns those rights will depend on the circumstances—employers are the legal authors of works created by their employees within the scope of their employment, but software elements contributed by contractors and other non-employees will typically have to be licensed from the contributor. That means most software publishers are both users and rightsholders. They are licensors and licensees, and they have to abide by the terms of their agreements with contributors.

This is all fine and good; it ensures that everyone who contributes value to a project is compensated, and makes it possible for companies like Dolby to specialize in creating elements that are later incorporated into larger works by companies like Adobe, who in turn don’t have to create in-house every single specialty technology that would improve the flagship suites they publish. The same model holds in many other copyright industries—book publishers, movie studios, and television producers all have to license 3rd party material they incorporate in their own work, and it facilitates an ecosystem of large and small producers, all tied together by licenses.

But this thicket of licenses can be a source of anxiety for the publisher when an unanticipated situation presents itself. Licenses are written with particular circumstances in mind, and they set payment terms and limit uses accordingly. Unanticipated situations may create money flows or enable new uses that the parties didn’t anticipate. From the summary on Apple Insider, this seems to be what’s going on with Adobe and Dolby—the license envisions one business model (selling discs), but Adobe pivoted to a different one (subscribing to downloads) and Dolby thinks that makes the old license obsolete or changes the way it applies.

Read the frustrating story of Eyes on the Prize if you want to see how this issue played out in the context of an incredibly important documentary series. License terms designed to enable a television miniseries fell apart as the project outlived its anticipated life-cycle and became a staple in public schools around the country. Licensors seized the opportunity to demand higher royalties, and the project was stuck in limbo for years. (The crisis was part of the origin story of the fair use best practices movement, though, so some substantial good did come from it.)

I know this is an issue for old software because I’ve heard it over and over again in my conversations with folks who have tried to seek permission. In the rare circumstance where you get a software publisher on the phone (someone with actual power to make a decision) to talk about new uses of old software, the concerns they express are almost always related to their uncertainty about their own rights. They are often friendly or at worst disinterested in library and archival uses, but they worry about their own liability if they grant permissions that aren’t theirs to grant. They wonder: “How can I tell you it’s OK to use this old stuff if my original agreement with the developer(s) is gone/expired/vague/narrow/never existed?” A related concern is that the software publisher doesn’t want to support the software or assume liability for security or other problems it may cause.

Overall, reticence about granting permission is rarely a question of publishers opposing the use or wanting to monetize it; it’s the difficulty they face in representing their own rights and anticipating liability. The bottom line, here, is that the software companies aren’t hostile to these uses; they’re just wary of their own risk. The upshot is that if institutions are willing to assume this risk themselves (and they should be—see below), perhaps they don’t need to worry so much about the consumer business models of publishers.

Fair Use and the DMCA Exemption to the Rescue
Perhaps I should have led with this: none of the Adobe drama should be the least bit discouraging, from a legal perspective, to libraries, archives, and other cultural memory institutions collecting software.

The terms of these licenses, and their revocation, need not slow us down in our preservation mission. The story is instructive, however, because it’s a good example of the very important difference between how consumer licenses affect consumers and what they mean for libraries and archives engaged in fair use activity.

If I understand correctly (and I’m happy to be corrected), Adobe Creative Cloud software is downloaded and installed locally on the subscriber’s computer. In that case, at least theoretically, a library or archive could one day find itself in possession of this software long after its commercial life is over (and its license is expired/revoked/etc). This distinguishes the CC suite from the G Suite of apps by Google, which exist entirely in the cloud and will be obtained by archives, if ever, only from Google itself. The subscribe-and-download business model makes collection difficult—updates are free and probably even automatic, so old versions are likely to be deleted, rather than stored in a box on a disc where it may one day find its way into an archive. But it’s not impossible that, against these long odds, a library could get a copy. In that case, it shouldn’t worry about all this license revocation stuff. Why not?

First, libraries and archives don’t need a license to make fair uses of software.

The statute tells us that fair use “is not an infringement of copyright,” so a license from the copyright holder is unnecessary. Which uses are fair uses? Well, luckily we have a Code of Best Practices in Fair Use for Software Preservation that tells us which uses the software preservation community views as legitimate and fair (following a deliberative process facilitated by fair use experts and reviewed and approved by independent legal reviewers). If you’re doing one of those things (which includes the core of the software preservation workflow, from acquisition and ingest all the way to consortial sharing arrangements), you don’t need to worry about revoked or expired licenses, because you don’t need a license in the first place.

A second concern you might have about preserving software like the Adobe CC suite is that it has a cloud-connected aspect that the company could use to disable the software once it’s no longer supported/licensed/etc. This isn’t just a technical headache; it could have legal consequences, too. The Digital Millennium Copyright Act’s anti-circumvention provisions can create legal liability for anyone who tampers with these kinds of protection measures. However, libraries and archives don’t have to worry about this provision if their activities are within the (relatively generous) bounds of a new exemption secured by SPN and the Harvard Law School Cyberlaw Clinic last year. Thanks to that effort, if you can solve the technical problem, the legal issue will be much less of a barrier than in the past.

To me, the elements of this story add up to a relatively rosy picture for preservation. Our uses are orthogonal to the ones software publishers anticipate—they happen at a time, in a place, and for reasons that software publishers and the companies they work with simply aren’t interested in trying to serve.

We shouldn’t be surprised, then, that the licensing and distribution models built for consumers are rarely appropriate for us. We shouldn’t be alarmed, either. Thanks to fair use (and other balancing limitations and exceptions in copyright), we have the rights we need to do our important cultural job.