I watched the public hearings for the proposed rule changes back when they were held in April and the smug-ass industry lawyers were fucking infuriating:
edit: Probably the most absurd argument that stuck with me was during the second part of the hearing on non-game preservation. The people in favor of the new rule were talking about preserving ancient word processor software and allowing it to be accessed remotely so that people could access primary documents in their original form, and the software/IP lawyers seriously argued that remotely accessing 20+ year old word processing software would represent potential market harm. Here’s a lightly edited transcript (mostly just taking out the moderator passing the baton), emphasis mine, with the representative’s positions before their statements for clarity:
Transcript
STEVEN R. ENGLUND, Jenner & Block LLP, on behalf of Entertainment Software Association
MR. ENGLUND: So just briefly, I think
“teaching” clearly does have to be viewed as an
expansion relative to private use, and whether it is a
fair use depends on context, as is always the case in
a fair use determination. The example that I was
thinking about while preparing for this hearing was
what about a preserved word processor program. Is
this exemption something that would allow providing
access to a class to use a preserved word processor
program an emulator for purposes of writing papers for
class? I don’t know. But I think, once you include
“teaching,” you need to think through those kinds of
scenarios.
[…]
JONATHAN BAND, Library Copyright Alliance
MR. BAND: Well, we’re happy to talk about
the scope of teaching uses if you want. I mean,
there’s no question that, you know, you can make all
kinds of classroom uses. And, I mean, the reserve
situation described, I mean, you know, certainly, that
there are sometimes physical reserves, but you also
can make, you know, multiples copies, not just one
copy. And so, you know, certainly, that was true when
I was a student and it’s certainly true now that
multiple copies are available and then even far more
for classroom uses and that’s routine.
And, again, what we’re talking about,
remember, this is all in the context of preserved
works, and even if we were dealing with the situation
that Mr. Englund was talking about, you know, if it’s
access to a preserved word processing program, you
know, sure.
Look, we can construct any kind of
ridiculous scenario we want, but do you really think
that anyone is going to be trying to avoid, you know,
licensing a word processing program in 2024? I mean,
we all have word processing programs on, you know, our
computers and our phones. I mean, you know, this is
kind of the farfetched scenarios that we’re talking
about here. It’s not realistic. People want to use
this exemption for preservation and then making access
to those preservation copies for research purposes,
for learning purposes. You know, it’s not going to
harm the market, and everyone here knows that.
[…]
ROBERT ROTSTEIN, MSK LLP, on behalf of Joint Creators and Copyright Owners
MR. ROTSTEIN: Yes. Just responses. Yes,
there might be multiple copies back in the day even in
reserve, but if there are five multiple copies, only
five users can take advantage of them at a time with
books on reserve, and that is the model and that model
with teaching has been abandoned essentially.
And I think there can be harm to the market.
One of the examples that the proponents use is Final
Draft 7. If you look on eBay, actually, you can buy
Final Draft 7 and there are comments saying it’s not
useless, but the people who wanted to buy it
apparently tried to use it in order to write
screenplays. And if you do that, you know, you’re not
buying Final Draft 13, which is harm to the market.
It’s harm to a derivative work.
So, yes, there can be market harm because
these older versions of software often do have, if
they could be circumvented, have utility for the
purpose, you know, for which they were initially
created.
[…]
KENDRA ALBERT, Harvard Law School Cyberlaw Clinic, on behalf of Library Copyright Alliance and Software Preservation Network
MX. ALBERT: […]
I also think it’s worth noting that none of
the opponents here actually represent the rights
holders of these word processing companies, right?
The Business Software Association has not opposed this
exemption. They have not sort of shown up and
suggested that there will be any market harm, and they
are the folks who produce the software in function
here unless I’m unaware of CSS, ESA, DPCCA, AACS,
RIAA, or MPA getting into new business models.
On the Final Draft 7 point, you know, my
understanding is that Final Draft 7 is no longer
available from the primary purchaser – or from the
company which was originally making it. That’s why we
use it as an example.
I think that I, you know, in some ways turn
this back a little bit to the conversation about sort
of the benefits and barriers of emulation, which is to
say that the experience of sort of using these kinds
of tools with remote access provided by preservation
institutions is useful for folks who are sort of
seeking to understand the historical experience or
access particular software-dependent materials that
rely on an older version. It is not a particularly
good – it is not a particular competition for the
existing versions of the work, which is, I believe,
why there are no rights holders that represent those
organizations here to oppose this exemption.
edit²: as disheartening an outcome as this was, one thing I did take away from the hearing was that there are some incredibly smart, passionate, and dedicated people working against all odds to try to get these rule changes enacted. So much respect for the people who believe we can have a better world and going up to bat against industries worth hundreds of billions of dollars.
I watched the public hearings for the proposed rule changes back when they were held in April and the smug-ass industry lawyers were fucking infuriating:
https://www.copyright.gov/1201/2024/hearings.html (if the highlight link doesn’t work, the relevant videos are under Proposed Class 6)
Transcripts available here
edit: Probably the most absurd argument that stuck with me was during the second part of the hearing on non-game preservation. The people in favor of the new rule were talking about preserving ancient word processor software and allowing it to be accessed remotely so that people could access primary documents in their original form, and the software/IP lawyers seriously argued that remotely accessing 20+ year old word processing software would represent potential market harm. Here’s a lightly edited transcript (mostly just taking out the moderator passing the baton), emphasis mine, with the representative’s positions before their statements for clarity:
Transcript
STEVEN R. ENGLUND, Jenner & Block LLP, on behalf of Entertainment Software Association
MR. ENGLUND: So just briefly, I think “teaching” clearly does have to be viewed as an expansion relative to private use, and whether it is a fair use depends on context, as is always the case in a fair use determination. The example that I was thinking about while preparing for this hearing was what about a preserved word processor program. Is this exemption something that would allow providing access to a class to use a preserved word processor program an emulator for purposes of writing papers for class? I don’t know. But I think, once you include “teaching,” you need to think through those kinds of scenarios.
[…]
JONATHAN BAND, Library Copyright Alliance
MR. BAND: Well, we’re happy to talk about the scope of teaching uses if you want. I mean, there’s no question that, you know, you can make all kinds of classroom uses. And, I mean, the reserve situation described, I mean, you know, certainly, that there are sometimes physical reserves, but you also can make, you know, multiples copies, not just one copy. And so, you know, certainly, that was true when I was a student and it’s certainly true now that multiple copies are available and then even far more for classroom uses and that’s routine.
And, again, what we’re talking about, remember, this is all in the context of preserved works, and even if we were dealing with the situation that Mr. Englund was talking about, you know, if it’s access to a preserved word processing program, you know, sure.
Look, we can construct any kind of ridiculous scenario we want, but do you really think that anyone is going to be trying to avoid, you know, licensing a word processing program in 2024? I mean, we all have word processing programs on, you know, our computers and our phones. I mean, you know, this is kind of the farfetched scenarios that we’re talking about here. It’s not realistic. People want to use this exemption for preservation and then making access to those preservation copies for research purposes, for learning purposes. You know, it’s not going to harm the market, and everyone here knows that.
[…]
ROBERT ROTSTEIN, MSK LLP, on behalf of Joint Creators and Copyright Owners
MR. ROTSTEIN: Yes. Just responses. Yes, there might be multiple copies back in the day even in reserve, but if there are five multiple copies, only five users can take advantage of them at a time with books on reserve, and that is the model and that model with teaching has been abandoned essentially.
And I think there can be harm to the market. One of the examples that the proponents use is Final Draft 7. If you look on eBay, actually, you can buy Final Draft 7 and there are comments saying it’s not useless, but the people who wanted to buy it apparently tried to use it in order to write screenplays. And if you do that, you know, you’re not buying Final Draft 13, which is harm to the market. It’s harm to a derivative work.
So, yes, there can be market harm because these older versions of software often do have, if they could be circumvented, have utility for the purpose, you know, for which they were initially created.
[…]
KENDRA ALBERT, Harvard Law School Cyberlaw Clinic, on behalf of Library Copyright Alliance and Software Preservation Network
MX. ALBERT: […]
I also think it’s worth noting that none of the opponents here actually represent the rights holders of these word processing companies, right? The Business Software Association has not opposed this exemption. They have not sort of shown up and suggested that there will be any market harm, and they are the folks who produce the software in function here unless I’m unaware of CSS, ESA, DPCCA, AACS, RIAA, or MPA getting into new business models. On the Final Draft 7 point, you know, my understanding is that Final Draft 7 is no longer available from the primary purchaser – or from the company which was originally making it. That’s why we use it as an example.
I think that I, you know, in some ways turn this back a little bit to the conversation about sort of the benefits and barriers of emulation, which is to say that the experience of sort of using these kinds of tools with remote access provided by preservation institutions is useful for folks who are sort of seeking to understand the historical experience or access particular software-dependent materials that rely on an older version. It is not a particularly good – it is not a particular competition for the existing versions of the work, which is, I believe, why there are no rights holders that represent those organizations here to oppose this exemption.
edit²: as disheartening an outcome as this was, one thing I did take away from the hearing was that there are some incredibly smart, passionate, and dedicated people working against all odds to try to get these rule changes enacted. So much respect for the people who believe we can have a better world and going up to bat against industries worth hundreds of billions of dollars.