[game_preservation] Status of DMCA exemption relevant to game preservation

[Henry Lowood]

I am forwarding an important e-mail from our Library of Congress project 
group from Rachel Donahue at UIUC.  Some of you probably know that the 
original exemption discussed before was spearheaded by the Internet 
Archive (with the point of the spear being our own Simon Carless, past 
chair of the SIG), with some support from Stanford and others.  One of 
the many problems with DMCA is that these exemptions only last three 
years (I believe), which is ridiculous.  Anyway, please read Rachel's 
note.  Maybe there is someone here who will want to take up the cause 
and look into what can be done in the short time-frame available, if 
anything at all is feasible.

Rachel's note:

A new set of DMCA exemptions is up for approval. Unfortunately, the old  
exemption that we semi-relied on:

"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."

Has not made the list of proposed classes, and I'm not sure that old  
exemptions are automatically considered for renewal. There's a procedure  
for "untimely submissions of proposed classes based on exceptional or  
unforeseen circumstances," but it requires a petition and a good defense  
of why it couldn't have been submitted eariler and why it should be  
considered after the deadline.

There are a few relating to computer programs and literature that we may  
want to consider commenting on. The comment period closes February 2,  
2009. All of the proposals, and the comment submission form, are available  
here:

http://www.copyright.gov/1201/

One thing in our favor is that, "this rulemaking addresses only the  
prohibition on the conduct of circumventing measures that control "access"  
to copyrighted works," and all other activities continue to be covered by  
section 106/fair use. That doesn't save us from contract law, but it does  
make preservation actions a bit less legally grey.

Cheers,
Rach

  Rachel Donahue
  Graduate Assistant
  Maryland Institute for Technology in the Humanities
  University of Maryland, College Park
  College Park, MD


-- 
Henry Lowood
Curator for History of Science & Technology Collections;
     Film & Media Collections
HRG, Green Library
557 Escondido Mall, Stanford University Libraries
Stanford CA 94305-6004 USA
http://www.stanford.edu/~lowood
lowood at stanford.edu; 650-723-4602