The Software Preservation Network endeavors to ensure that cultural memory institutions and related entities can exercise broad and clear legal rights to engage in software preservation (including providing access for research, teaching, and learning). We do this in two principal ways: by educating our members about their legal rights and responsibilities, and by advocating on behalf of our members in a variety of legal and political forums, including government agencies, courts, and legislatures. We also facilitate better private arrangements with donors and vendors by identifying good practices that preserve and build on members’ legal rights and policy interests. 

“Fair Use First”

SPN pursues a “fair use first” strategy in its efforts to foster lawful software preservation. This means SPN and its members start from a set of consensus principles about what the right of fair use (together with related provisions) permits us to do on our own initiative. This consensus is embodied primarily in the Code of Best Practices in Fair Use for Software Preservation, and draws from best practices in the broader library, archives, and museum communities. Fair use is an extremely powerful right which can help solve some of the most intractable legal puzzles the SPN community faces, such as the widespread phenomenon of “orphan works,” whose rightsholders cannot be identified or located. 

A closely-related priority for SPN is engaging in the triennial DMCA rulemaking process in the United States. Advocating for software preservation in that process has resulted in rules that clarify our right to circumvent digital locks (e.g., license keys, authentication servers, hardware dongles) in the course of our fair use preservation and access activities. Each triennial rulemaking process provides an opportunity to modify and expand these rules to better fit the community’s evolving needs.

We support additional strategies, including seeking permissions, only to augment the rights SPN members possess under the law. We also seek to ensure that vital rights (both those of SPN members and of the users who consult our collections) are respected in any agreements our members pursue. By starting from a strong commitment to these rights, SPN members conserve limited resources and avoid inadvertently creating or perpetuating a “permissions culture” that undermines our fair use rights. 

Fair use is closely associated with United States law, but similar flexible rights exist in several other countries, most notably Canada. SPN supports efforts to clarify where and when analogous provisions apply in national laws where our members and their colleagues work. Where possible, we support the adoption of fair use-like provisions and specific exceptions favoring preservation and access to software in countries where legal reform is under way, for example in national implementation of the Digital Single Market Directive in European Union countries. 

Preferred citation:

Butler, Brandon. (2020, March 28). Software Preservation Network Law & Policy Agenda. Software Preservation Network. https://www.softwarepreservationnetwork.org/spn-law-policy-agenda/