The Laboratorium : The Revolution Will Not Be Archived (If the Section 108 Study Group Has Its Way)

The 100s of the title of the United States Code dealing with copyright contain roughly a dozen extraordinarily dense provisions. Each deals, in painful detail and overly belabored exactitude, with some specific institution whose mere existence would expose it to crushing copyright liability if the usual, draconian provisions were to apply: libraries, satellite broadcasters, books-on-tape services for the blind, and so on. They’ve each been given a statutory carve-out, a small safe zone of freedom from liability.

These rules were drafted by committee, after extensive negotiation, and it shows. Rather than formulate sensible general rules, or give courts broader instructions and discretion to excuse classes of uses, Congress created a set of profoundly legalistic exclusions. Public broadcasters may, upon payment of a royalty for the use of a nondramatic musical work, pursuant to a negotiated scheme satisfying certain conditions, tape their programs containng such works and keep the tapes for seven days for use in face-to-face educational instruction—but not eight days, because that would be infringement. And so on and so forth, for page after page after page. The rules are so precise, so narrow, because that’s what happens when you negotiate. Copyright owners give just enough ground to make those yappy broadcasters and public-interest organizations shut up, but make sure that any statutory exceptions are hemmed in with so many provisions and conditions that no one else will ever be able to use them, no matter how good the cause.

As overly technical negotiated compromises are wont to, some of these provisions have been falling behind the times. The digital revolution, in particular, has been making the library provisions in section 108 increasingly obsolete. The rules are thinking of books, not e-books; of board games, not massively multiplayer games; of records, not webcasts. A lot of our cultural heritage is at risk, but libraries and archives don’t have the free hand they need to preserve it, curate it, and make it accessible. The risk that a few antisocial malcontents could flex their copyright-given muscles keeps these institutions from making proper, safe copies of all sorts of digital artifacts.

Recognizing these concerns—or at least having some inkling that there might be an issue here—the Copyright Office and Library of Congress convened a study group back in 2005. Their mission:

The group will provide findings and recommendations on how to revise the copyright law in order to ensure an appropriate balance among the interests of creators and other copyright holders, libraries and archives in a manner that best serves the national interest.

Well, their report is out, and it’s a disaster. The group was staffed with smart people and they talked to smart people in doing their research (see the appendices), but they managed to produce a report whose suggestions, if adopted, would make the crisis of digital archiving worse.

The fundamental problem of the report is that it would make section 108 substantially more complicated, and filled with more detailed restrictions and qualifications. Complexity and narrow drafting were the original problems that got us into this mess; adding new layers of them are not how you future-proof the law.

Here’s an example. The current 108 exception lets libraries make replacement copies of works that are “damaged, deteriorating, lost, or stolen” if those copies can’t be bought on the open market at a fair price. This rule doesn’t let them make copies of works before the damage occurs. This is a paper-oriented rule. Books, if properly preserved, fail gradually, and damage is visible. But electronic media often fail quickly and catastrophically. So there’s a recommendation in the report to let libraries make “preservation” copies of published works before they show signs of damage. So far, so good. But here’s the recommendation:

An exception should be added to section 108 to permit a library or archives qualified under the proposed exception to make a limited number of copies as reasonably necessary to create and maintain a preservation copy of any at-risk published or other publicly disseminated work in its collections, provided that:
- a. The number of copies made is limited to those that are reasonably necessary to create and maintain a copy of the work for preservation purposes, in accordance with recognized best practices;
- b. The library or archives restricts access to the preservation copies to that which is necessary to effectively maintain and preserve the work;
- c. The preservation copies may be used to make copies pursuant to subsections 108(c) or (h); and
- d. The preservation copies are labeled as such.
Criteria to determine if a particular library or archives is “qualified” to avail itself of this exception should include whether the library or archives:
- a. Maintains preservation copies in a secure, managed, and monitored environment utilizing recognized best practices. The following general principles for best practices should be observed for digital preservation (and for analog preservation to the extent applicable):
  - i) A robust storage system with backup and recovery services;
  - ii) A standard means of verifying the integrity of incoming and outgoing files, and for continuing integrity checks;
  - iii) The ability to assess and record the format, provenance, intellectual property rights, and other significant properties of the information to be preserved;
  - iv) Unique and persistent naming of information objects so that they can be easily identified and located;
  - v) A standard security apparatus to control authorized access to the preservation copies; and
  - vi) The ability to store digital files in formats that can be easily transferred and used should the library or archives of record need to change.
- b. Provides an open, transparent means of auditing archival practices;
- c. Possesses the ability to fund the cost of long-term preservation;
- d. Possesses a demonstrable commitment to the preservation mission; and
- e. Provides a succession plan for preservation copies in the event the qualified library or archives ceases to exist or can no longer adequately manage its collections.
The qualifying criteria for this exception should make allowances for institutions with limited resources that cannot create their own sophisti- cated preservation systems.

Got that? Why, it’s almost as though it was drafted by a group of copyright owners to sabotage the preservation copy privilege by making it so onerous that only very large, very conservative, and very tightly controlled institutions could ever make use of it. And it’s almost as though the librarians and archivists went along with the proposal in order to eliminate annoying competition from people who don’t have the proper respect for how things Ought To Be Done in a real library. Nah. That can’t be it.

Or can it? Consider the following recommendation on “functional requirements”:

Libraries and archives should be required to meet additional eligibility criteria. These new eligibility criteria include possessing a public service mission, employing a trained library or archives staff, providing professional services normally associated with libraries and archives, and possessing a collection comprising lawfully acquired and/or licensed materials. (emphasis added)

This recommendation is purely gratuitous. There’s no evidence that section 108 has been undermined or abused by rapscallions pretending to be archivists. Copyright owners aren’t losing massive revenue to fly-by-night “libraries”; nor has the public been misled by hucksters setting up promising-looking preservation shops and then skipping town. No; the only prompts for this tightening-up are, first, that the current act doesn’t define “library” or “archive,” and second, that:

Widespread use of digital technologies to save and aggregate documents has encouraged the use of the terms “library” and “archives” in a broad sense to include various collections of information in digital form. The term “archives” is sometimes used to refer generally to saved information (an “e-mail archive,” for example). Entities also may refer to themselves as archives simply because they have amassed a database of information, regardless of whether they have any professionally trained archives staff or the commitment and ability to ensure the cultural and historical record by providing long-term retention of and access to the archived materials. The term “library” is colloquially used to refer to any set of collected information, regardless of whether a professional librarian supervises the acquisition and organization of the materials or assists in making them accessible to users. In these contexts, neither of the terms “library” or “archives” necessarily connotes a trusted institution acting for the public good. The evolving usage of these terms has the potential to obscure the types of entities that are covered by section 108.

Let me translate: Oh, no! Amateurs are doing the work of experts!

You see, people today—particularly online—just collect stuff. Those collections have in some cases become larger and more comprehensive than some of the collections that libraries traditionally keep. Jason Scott’s textfiles.com is a good example: he’s collected somewhere around 2 gigabytes of text from the glory days of BBSes. He’d never have pulled together this utterly irreproducible collection if he’d been bound either by the niceties of traditional cataloguing practice or by the niceties of copyright law. He’s hardly alone. The Internet is filled with DIY archives.

And that DIY ethos, generalized, is precisely why the Internet is so exciting, so revolutionary. There’s been no gatekeeping by professional cataloguers telling users where to file their web sites and which keywords and search algorithms to use. People just put stuff online. Then some other people link to them, and yet other people create search engines that index their stuff. It all hangs together, and it’s produced a storehouse of knowledge larger and more accessible than any library in the history of humanity. A fair piece of that accessibility is due to the amateurs in the house, the folks who’ve pulled together a set of documents out of a love for the material and a concern for history.

This ought to be great. But when amateurs start doing the sort of tasks we associate with experts—in this case, the tasks of librarianship and archiving—sometimes the experts have trouble recognizing the value of what the amateurs are doing it. We’ve seen this with journalism and blogs; we’ve seen this with encyclopedists and Wikipedia; we’ve seen this with programmers and free software. Instead of making common cause with the thousands of eager volunteers who want to work alongside them, the professions close ranks around a misguided notion of exclusivity.

In this sphere, we ought to be finding ways to encourage amateur collection and preservation. There are digital artifacts being generated daily that no one has any clear idea how to index, collect, and maintain. If section 108 is to be meaningful into this scary but excitingly open future, it should be encouraging that someone, somewhere out there, who’s figured out a neat way to collect and store forum posts, or to thread tweets, or to reconstruct a good simulacrum of a virtual world. The very last thing it should be doing is withdrawing its protections from these talented, enthusiastic amateurs. But that’s exactly what the study group would like it to do.

The future needs plenty of traditional archives. But it also needs plenty of Internet Archives. And plenty of Jason Scotts.

The librarians I know personally are thoughtful about the digital future and eager to bring their professional values to a wider public. They care deeply about preservation, accessibility, media literacy, quality, and democracy. It’s too bad that the report of the section 108 study group ranks those values beneath squeezing out a few more sixpence for copyright owners.

Updated to add: Let me be clear. This isn’t a matter of rearranging deck chairs on the Titanic. This is more like rearranging deck chairs on the Titanic, if the Titanic were sinking because of the absurdly large number of deck chairs it was carrying. The entire approach of specifying exceptions and exceptions-to-the-exceptions in numbing detail is a failed approach to copyright regulation.

It’s sometimes argued that having clear, specific rules helps promote certainty and decrease costs because people can tell what their rights and obligations are easily. There are a few problems with this argument in this context. First, you tell me whether the current version of section 108 makes things clear, and whether the proposed revisions would make them clearer. You’re pretty much hiring a lawyer to parse the rules out, no matter what. Second, what certainty these highly conservative provisions offer is typically negative. If you want to avoid copyright trouble, it’s easy: All you have to do is never read or write anything! Stop thinking, too, just to be on the safe side. And third, closing purely theoretical loopholes inhibits certainty, rather than promoting it. A provision can be technically ambiguous but harmless if no one actually worries about the line it defines. Insisting on superficial clarity not only makes the rules harder to read, but paradoxically draws attention to the newly-sharpened line, inviting people to find ways to circumvent it.

The Copyright Act, as currently drafted, makes simple things complex, and complex things insane. The Study Group report notes, without apparent irony, that people have trouble understanding section 108 already. Their proposed remedy is to redraft it to make its logical structure clearer. That would help. But it would help more, much more, to stop asking it to bear the weight of so many arbitrary boundaries, conditions, and gotchas. Redrafting it would be like helping a hungover drunk pull on enough clothes to go out without being arrested, so he can go to a bar and get even more plastered.

Updated to add 2: For further useful thoughts on the role of archives in cultural preservation, I recommend Guy Pessach’s work.

Updated to add 3: Here’s another great example of high-quality amateur archiving: Steve Meretzky, one of the original programmers of classic text adventures at Infocom, saved everything. And see also the interactive Fiction Archive. Does it provide “professional services normally associated with libraries and archives?”