The Software Preservation Network ended 2023 with a bang, filing its first set of arguments in the latest cycle of the triennial DMCA rulemaking. We were represented by our attorneys at the Harvard Cyberlaw Clinic, and joined in the filing by our allies the Library Copyright Alliance (comprised of the Association of Research Libraries and the American Library Association). The comments address two separate rules: one for video games, and one for non-game software.
The goal of both proposals is to increase research access to software collections without encroaching on the market prerogatives of the copyright holders, which we believe we have achieved by limiting the exemptions to out-of-commerce works accessed for bona fide research purposes.
But let’s back up and provide some context: Every three years, SPN and others engage in the DMCA rulemaking, which is hosted by the U.S. Copyright Office with input from the National Telecommunications and Information Administration and final determinations made by the Librarian of Congress. The goal of the proceeding is to identify lawful uses that should be exempt from the general rule against breaking digital locks (passwords, authentication servers, dongles, and other “technical protection measures”) that control access to software and other copyrighted digital media. Since 2018, SPN has successfully sought exemptions permitting preservation and access to software and software-dependent material. You can learn more about the current rules here.
This year, we sought modifications to permit (1) multiple simultaneous remote users for non-game software, and (2) remote access to video games for research and education. The overarching goal for both exemptions is to take advantage of remote access technology like EaaSI to enable scholars who don’t live near one of the few institutions with substantial software or video game collections to browse and explore these materials without traveling to see them onsite, and to allow networks of institutions to collaborate to preserve and provide research access to software materials.
Remote access was recognized as a reasonable and worthwhile goal in the previous cycle of DMCA rules. Informed by the pandemic experience that added personal health and safety to the list of costs involved in visiting physical library and museum premises, the Copyright Office and the Librarian approved a rule that enabled off-site access to non-game software under certain circumstances. The Copyright Office expressed concern, however, that if access were not strictly limited, the exemption could impact the market value of the works being used (though the rules already require that works be out-of-commerce before they can be made available for research use).
We believe some of the limitations imposed as a result of this concern needlessly burden research with little apparent benefit to copyright holders, so this cycle we argued for their removal. When it comes to video games, which were excluded completely from remote access last cycle, SPN got a major power-up just in time for this cycle: the video game availability study prepared by Phil Salvador and co-sponsored by SPN and VGHF. The copyright holders argued last cycle that research access to video games could harm the market for reissued games, but the SPN/VGHF study shows that the vast majority of video games disappear from the market at the end of their relatively brief commercial life, never to return. Barring remote research access to games thus harms scholarship and the public interest with no apparent benefit to copyright holders. We are hopeful that the Copyright Office will recognize this as exactly the situation the triennial rulemakings are designed to prevent.
And for non-game software, we argue that many of these titles (like operating systems and apps for making and viewing design files) are necessary elements for access to hundreds or thousands of other digital artifacts. Limiting access to essential software tools to one user at a time creates a bottle neck that imposes draconian limits on research access to digital materials generally. Again, these are exactly the burdens on access that the triennial rulemaking is meant to address.
Comments from opponents to these proposals are due February 20, 2024. We’ll get a chance to reply in writing, and then live hearings will take place later in the Spring. Final rules are usually issued in October, so we’ve got a ways to go, but these first substantive filings are an auspicious beginning for SPN’s DMCA efforts this cycle. Stay tuned!