Brown Bag: DMCA §1201 and Video Game Preservation Institutions: A Case Study in Combining Preservation and Advocacy, by Kendra Albert, Harvard Law School
Kendra Albert, who has served as research associate at the Harvard Law School; as an intern at the Electronic Frontier Foundation; as a fellow at the Berkman Center for Internet & Society; and is now completing her J.D. at Harvard Law, presented this talk as part of the Program on Information Science Brown Bag Series.
Kendra brings a fresh perspective developed through collaborating with librarians and archivists on projects such as as perma.cc, EFF’s response to DMCA 1201, and our PrivacyTools project.
In her talk, Kendra discusses the intersection of law, librarianship and advocacy, focuses on the following question:
Archival institutions and libraries are often on the front lines of battles over ownership of digital content and the legality of ensuring copies are preserved. How can institutions devoted to preservation use their expertise to advocate for users?
A number of themes ran through Kendra’s presentation:
- Libraries have substantial potential to affect law and policy by advocating for legal change
- Libraries enjoy a position of trust as an information source, and as an authority on long-term access for posterity
- Intellectual property law that is created for the purpose of limiting present use may have substantial unintended consequences for long-term access and cultural heritage.
Reflecting on Kendra’s talk, and on the subsequent discussions…
The courts have sometimes recognized preservation as having value — explicitly in formulating DMCA exceptions, and implicitly, in adopting perma.cc. But, the gaps between the private value of the content to the controller in the short term, and its value to the public in the long-term value is both a strength and a weakness for preservation efforts.
For example, Kendra’s talk noted that the lack of a market for older games is an important factor for determining that distribution of that content is fair use — which works in favor of preservation. The talk also mentioned that the game companies short-term focus on the next release was a barrier to collaborating on preservation activities. These points seem to me connected — the companies would become interested if there were a market… but this would, in turn, weaken the fair use consideration. Effective public preservation efforts must walk a tightrope — supporting access and use that is of value, but not either impinging on private value in the short term, or creating so much of a market for access, that there is political pressure to re-privatize the market.
Furthermore, it is well recognized that institutional legal counsel tends to be conservative … both to minimize risks to the institution as a whole, and to avoid the risk of setting precedent with bad cases. It is clear from Kendra’s talk that librarians dealing with projects that use intellectual property in new ways should both engage with their institution’s legal counsel early in the process, and have some independent legal expertise on the library team in order to generate possible new approaches.
For more information you can see some of the outputs of Kendra’s work here: