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DMCA Exemption Added That Supports Archivists

The Digital Millennium Copyright Act, aka DMCA (which made it illegal to create or distribute technology which can get around copyright protection technology) has six new classes of exemptions added today.

From the very long named Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works out of the U.S. Copyright Office (part of the Library of Congress) comes the addition of the following class of work that will not be “subject to the prohibition against circumventing access controls”:

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.

This remain valid from November 27, 2006 through October 27, 2009. Hmm.. three years? So what happens if this expires and doesn’t get extended (though one would imagine by then either we will have a better answer to this sort of problem OR the problem will be even worse than it is now)? When you look at the fact that places like NARA have fabulous mission statements for their Electronic Records Archives with phrases like “for the life of the republic” in them – three years sounds pretty paltry.

That said, how interesting to have archivists highlighted as benefactors of new legal rules. So now it will be legal (or at least not punishable under the DMCA) to create and share¬† programs to access records created by obsolete software. I don’t know enough about the world of copyright and obsolete software to be clear on how much this REALLY changes what places like NARA’s ERA and other archives pondering the electronic records problem are doing, but clearly this exemption can only validate a lot of work that needs to be done.

Posted in access, born digital records, future-proofing, preservation, software