Thanks to the hard work of two great law school students of Peter Jaszi of American University, Jieun Kim and Doug Agopsowicz, the Internet Archive and other libraries may continue to preserve software and video game titles without fear of going to jail. This is a happy moment, but on the other hand this exception is so limited it leaves the overall draconian nature of the DMCA in effect. A total of more than $50,000 of pro-bono lawyer time has been spent to just affect this exemption and its continuation. We hope that Congress, and other governments, will pass more balanced copyright laws to allow at least libraries, archives, research and scholarship to flourish without the current dark clouds of litigation.
More formally, Internet Archive has successfully advocated for an exemption to the Digital Millennium Copyright Act (“DMCA”). The DMCA prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect their works (“access controls”). Specifically, 17 U.S.C. §1201(a)(1)(A) provides, in part, that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” In order to ensure that the public will have continued ability to engage in noninfringing uses of copyrighted works, such as fair use, subparagraph (B) limits this prohibition. It provides that the prohibition against circumvention “shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding three-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title” as determined in a rulemaking proceeding.
On November 27, 2006, the Librarian of Congress, on the recommendation of the Register of Copyrights, announced six classes of works which will not be subject to the prohibition against circumventing access controls (the DMCA) through October 27, 2009. One of these six classes includes:
“computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”
The group primarily responsible for requesting this second exemption is the Internet Archive, a 501(c)(3) non-profit that was founded to build an internet library, with the purpose of offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format. Long before the enactment of the DMCA, many works distributed in digital formats on physical media (such as floppy diskettes) were designed so that the original diskette must be inserted into the appropriate drive in the computer in order to enable access to the work (“original only” access controls). When the Internet Archive migrates the content of these works to digital archival systems, often times the “original only” access controls must be circumvented to verify the integrity of the reproduction. Such “original-only” technological measures qualify as access controls even though the primary purpose may be to prevent copying. Thus, by circumventing the “original-only” access controls to verify the integrity of reproductions, the Internet Archive could potentially face liability under the DMCA for its archival work. However, as a result of receiving this exemption, the Internet Archive may continue to circumvent these access control measures for preservation purposes.
This exemption marks the second successful DMCA exemption proposed by the Internet Archive. The Internet Archive first received an exemption similar to the just-granted exemption back in 2003, thanks to pro-bono help of Alex Macgillivray, then of Wilson Sonsini Goodrich and Rosati. As a result of receiving this exemption, the Internet Archive can continue its important archival work of computer programs and video games for at least the next three years, free from liability under the DMCA.
To read the full recommendation of the Register of Copyrights, please visit: http://www.copyright.gov/1201/docs/1201_recommendation.pdf