
The United States Copyright Office conducts a rulemaking proceeding under 17 U.S.C. 1201 every three years, creating temporary exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA). Section 1201 of the DMCA outlaws the circumvention of technological protection measures (TPMs) that prevent the unauthorized copying of digital materials. The blanket ban on TPM circumvention, however, applies regardless of whether the underlying use of materials infringes copyright or not. In December 2023—continuing from advocacy in 2017 and 2020—the Cyberlaw Clinic, on behalf of the Software Preservation Network (SPN) and Library Copyright Alliance (LCA), sought to expand existing exemptions to allow for eligible memory institutions to provide remote access to out-of-commerce software and video games for qualifying preservation, research, and teaching purposes.
In 2018, SPN and LCA were granted Section 1201 exemptions for the circumvention of technological protection measures required for archival preservation and research on all forms of software. In 2021, the Copyright Office granted an expansion to those exemptions, unifying eligibility requirements and allowing for remote access to preserved, non-video game software, so long as access was only provided to one user at a time.
In December 2023, SPN and LCA submitted opening comments asking for expansion in two exemption classes – one for video games, and one for non-video game software.
For video games, SPN and LCA proposed allowing remote access if potential researchers are individually vetted and access is subject to specific, appropriate, technological controls. The comment points out that the current requirement of physical access disadvantages scholars and students at institutions without significant video game collections (which is most academic institutions), discourages investment in preservation, and disadvantages the field of video game studies. To quote the joint comment:
“Video game studies is a vibrant, interdisciplinary field that considers how a groundbreaking interactive artform affects and reflects cultural and technological change in society. The field’s growth has been limited by the lack of a legal means to remotely access its objects of study, relegated to studying what is available rather than what is important. It will continue to be limited without a more precise exemption. Off-premises access to preserved video games for academic use is a transformative fair use that benefits the public by facilitating scholarship about one of the most influential art forms of the twentieth and twenty-first century.”
For non-video game software, SPN and LCA propose removing the single user restriction in order to allow for wider emulation of software that is required to access many different forms of digital collections.
“If a researcher wants to remotely access part of the Balmori Associates collection, the archives of an urban and landscape design firm, they would need a library or archives’ copy of ArcGIS 9, an out-of-commerce software program that was used to make maps and analyze data. Unfortunately, they would be out of luck if another individual is already remotely accessing this software, as requests to institutions within SPN’s network turned up only one copy. …
These may seem like obscure programs, unlikely to have users clamoring for widespread access. But the same problem exists for operating systems, which are required to emulate environments for software that originally ran on them. Under the current rules, it is possible that only one person at a time could remotely access any collection or material requiring AutoCAD 2005 in the entire United States, and that the total number of simultaneous Windows XP emulation environments ever available for researchers could be determined by how many copies of the operating system preservation institutions managed to acquire before it was no longer distributed. Thus, section 1201 still creates a significant barrier to preserving and providing access to out-of-commerce software for scholarship and research.”
Clinical students Jaime Gordon and Jonathan Saloman drafted the comments, under the supervision of Clinical Instructor Kendra Albert. Next, opponents to the proposed expansion of the exemptions will have an opportunity to file comments in opposition, and then proponents will file replies. The Clinic looks forward to working with SPN and LCA as the triennial rulemaking continues.