In the United States, copyright generally covers audiovisual works[SUP]1, 2[/SUP]. The owner of an audiovisual copyright has the exclusive rights to display or perform the copyrighted work publicly, among other things and subject to certain exceptions[SUP]3[/SUP]. For works created on or after January 1, 1978, copyright generally “endures for a term consisting of the life of the author and 70 years after the author’s death”, or in the case of works made for hire, either “95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.” [SUP]4[/SUP]
Now, of those exceptions listed before there does exist an exception for libraries and archives. It allows libraries and archives “to reproduce no more than one copy or phonorecord of a work” provided that the library is open to the public or available to specialized researchers and not only researchers affiliated with the libary/archive or its institution. Up to three copies can be made of a work for the sole purpose of preservation, security, deposit for research use, or to replace a damaged copy, or if the “existing format in which the work is stored has become obsolete”. Even so, these three copies may NOT be made available in digital form to the public outside the premises of the library or archives. [SUP]5[/SUP]
I don’t believe the above exception covers the Internet Software Collection. One, distribution over the internet does not count as “on the premises”. An argument can be made that the website counts as “premises” but I don’t think that will hold water in court, for technical reasons. More importantly, the Internet Archive gives visitors a button to download the Read-Only Memory or image file for any item in the collection - that is, they let you download the binary data for the copyrighted work. There is no way to construe that as not letting the work leave the premises, and there is no way to construe that as keeping to one copy.
There is another exemption provided when the works are computer programs [SUP]6[/SUP]. This exemption allows for people to let their computer make copies if it is an essential step in the utilization of the computer program (for example to copy the program from disk to memory), or to make copies for archival purposes only. Similarily, I do not believe this section covers the distribution of protected programs to the public over the internet.
There is another exception provided for fair use[SUP]7[/SUP], which I think is actually most likely to cover the Internet Archive. There’s a healthy debate to have on that one, and it’s a complicated subject that I don’t feel like fitting into the OP, especially when…
The Internet Archive claims they have their own special exemption to the DMCA [SUP]8[/SUP]. They cite the second triannual rule[SUP]9[/SUP] made by the Libarian of Congress pursuant to the DMCA. That law says “[n]o person shall circumvent a technological measure that effectively controls aspect to a work”[SUP]10[/SUP], exempting such classes of works as the Librarian of Congress provides. The cited rule exempts[SUP]9[/SUP]:
(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. 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.
That rule dates to 2003 and expired in 2006, but there is an updated rule available from 2018 which covers the same ground [SUP]11[/SUP]. The Librarian’s most recent rule exempts:[SUP]11[/SUP]
(12)[…]
(ii) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.*
Changes between the 2003 rule and the 2018 rule include, notably, the requirement that the video games are “not distributed or made available outside of the physical premises of the eligible library, archives, or museum.” It appears to me that the Internet Archive has lost its special exemption, or at least it doesn’t cover their current museum model.
This means games which used digital rights management protection schemes should not be available. For example, “I Spy Spooky Mansion”. Your humble opinion?
Thread originally prompted by “[THREAD=241624]Capitalist Pig: The Computer Game[/THREAD]”.
~Max
[SUP]1[/SUP] 17 U.S. Code § 102 (a).
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) […]
(6) motion pictures and other audiovisual works;[…]
[SUP]2[/SUP] 17 U.S. Code § 101.
“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
[SUP]3[/SUP] 17 U.S. Code § 106.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(4) in the case of […]motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, […]and pictoral, graphic, or sculptural works, including the individual images of a motion picture or audiovisual work, to display the copyrighted work publicly; […]
[SUP]4[/SUP] 17 U.S. Code § 302.
[SUP]5[/SUP] 17 U.S. Code § 108.
[SUP]6[/SUP] 17 U.S. Code § 117.
[SUP]7[/SUP] 17 U.S. Code § 107.
[SUP]8[/SUP] “Internet Archive Gets DMCA Exemption To Help Archive Vintage Software”. Internet Archive. Retrieved 06/17/2020 from https://archive.org/about/dmca.php
[SUP]9[/SUP] 68 FR 62011 (2003)..
[SUP]10[/SUP] 17 U.S. Code § 1201(a)(1).
[SUP]11[/SUP] 83 FR 54010 (2018).