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I have been encountering alot of archives and mirrors lately. Mostly in the efforts of expanding the catalog of the CDG.But also just recently Ben Collver released an archive of the GameFAQs today. Mirroring web content and hosting archives of large text file databases is something that occurs quite often here in the gemini-space one way or another. Preserving information for future generations is a natural occurance for us internet dwellers. Buut theres a thorn in every internet archivst side. Copyright.
Every once in awhile while browsing websites, capsules, and text files, you may stumble across this little string.
> Copyright ©️ -XX.X 20XX-20XX John Doe. All Rights Reserved.
Some authors define explicit use of their work. In the example of Tim Brastow's Doom guides hosted on GameFAQs which I was hoping to archive all of their doom related guides on the capsule .
> This guide is protected by copyright. You cannot sell this, put this on your site without my permission, or any other violation of copyright law. You can, however, save this onto something like My Documents and print it our for LEGAL use.
In a different version of the guide hosted on classic doom is this nice paragraph:
> Now, I'm going to say this once, and I'm not going to say this again: You BETTER not violate 1 single copyright violation with this FAQ. I spent a lot of time and effort into this Walkthrough, and it all comes into this. This work better not be on your website, as I will only allow ClassicDOOM, GameFAQs, IGN, and Gamespot to host this guide.
Uh-Oh. Ol' Benny boy here just did a no-no and is hosting Timmers text file without emailing them for explicit permission by indirectly hosting the GameFAQs archive. Somebody, quick, call the internet police!
Heres the thing. Just putting 'copyright lol' in your text file does not make a silver bullet for you to have complete tyrannical control of your content, forever. As it turns out, theres this cute little legal thing called 'fair use' that allows copyrighted stuff to be distributed *without creator consent* under specific non-commercial use circumstances.
The specifics of copyright law and fair use are... messy, to say the least. As is most buracratic bullshit I suppose. So lets take some time and dig a little deeper into the techicalities to see if Ben and I need Timmathons explicit permission to host their text file.
Do mirrors and archives fall under fair use?
How much legal weight does slapping a copyright claim on something like a text file have?
How much accountability should public archives and mirrors have in respecting theoretical copyright?
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited (but quite long) time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States. -wikipedia
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. -wikipedia
To answer this I had to do some digging and found a few great websites on the subject which I will link here first
The second link in particular was very helpful and I will be quoting some paragraphs from it.
> In copyright law, copying is known as “reproduction,” and it’s one of the exclusive rights of the copyright owner.[2] The right to publicly display a work is also an exclusive right of the copyright owner,[3] as is the right to make an adaptation, known as a “derivative work.”[4]Our desire to keep digital information around for the future runs smack into the exclusive rights of the copyright owner.
>Fortunately, while there is no general exemption for preservation activities in copyright law, there are exemptions that can help individuals and especially libraries and archives legally preserve expressive works for the future. There are some specific exemptions for certain types of actions and for certain actors. Furthermore, in the absence of a specific exemption, one can always consider fair use as a defense when making a preservation copy.
> in spite of the copyright owner’s exclusive rights, it is permissible for you to make a copy for archival purposes of a copyrighted computer program. A computer program is defined in the law as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
> Libraries and archives have additional preservation options under 17 USC § 108 of United States copyright law. One of the few good things included in the Digital Millenium Copyright Act (“DMCA”) was a provision that explicitly allows libraries and archives to make up to three copies of a work for preservation purposes.
> Furthermore, the copies can be digital, so long as they are not distributed digitally nor made available to the public in a digital format outside the premises of the library or archives.
>In order to take advantage of the exception, libraries and archives must follow certain ground rules. They must be either open to the public or allow access to non-affiliated researchers; the copying cannot be for “direct or indirect commercial advantage”; the library or archives must own a legal copy of the original item; and any copies made must carry with them a notice of copyright
> Using Section 108, libraries and archives can start preserving old digital files in their collections. It does not help them, however, preserve materials that they do not own, such as networked resources or Web sites. Nor does Section 108 help individuals who want to preserve a digital files they may have legally acquired or obtained from the Internet. For this sort of preservation, we must rely on fair use.
> Since individuals cannot use Section 108 to make copies, even for preservation purposes, they must turn to the Fair Use provision in US copyright law.
> At the heart of the fair use exemption is the assessment of the four factors that constitute fair use: Purpose of the use, Nature of the work, Amount or substantiality used, and Market impact (PNAM).
> It is likely that most preservation copying would meet Minow’s PNAM test. As Robert Oakley has noted about preservation copying in general:
>Virtually everyone views preservation copying as socially beneficial. It is consistent with the Constitutional purposes for copyright since the preservation of printed knowledge is necessary for the progress of science and the useful arts.[14]
>If preservation is being done for non-commercial, socially beneficial reasons, it seems likely that the “Purpose” factor would lean towards fair use.
> The nature of digital works, the second fair use factor, can vary greatly, but Congress seems open to preserving a wide variety of material when preservation is at stake.[15] The “Nature” factor, then, might also support a fair use.
> The third factor, the Amount and substantiality copied, might normally weigh against a finding of fair use, since the item is being copied in its entirety. But the Supreme Court has noted, “the extent of permissible copying varies with the purpose and character of the use.”[16]Obviously, if the purpose is to preserve a work, then the entire work must be copied. The amount copied is appropriate for the purpose, and so a court might even find this use fair.
> The fourth factor, the Market impact of making of a preservation copy, is likely to be the most important in any fair use assessment, and unfortunately it is almost impossible to guess how a court might rule on this. Would the courts conclude that digital information is like the computer programs protected by 17 USC § 117, which can be migrated and adapted to run on new platforms without compensation to the copyright owner? Or would the courts conclude that purchasing a copy of a work does not give you the right to copy it onto new media or transform it into new formats into perpetuity? Would they decide that individuals, like libraries copying under 17 USC § 108, must first determine if an unused copy can be purchased before a preservation copy can be made? Unfortunately, there have been no cases involving digital preservation that can serve as indicators of how the courts might rule.
> Digital preservation resides in an even murkier legal gray area because of the fundamental need to copy digital information (one of the exclusive rights of the copyright owner) in order to preserve it. In addition, there is greater interest in preserving works that you may not own, particularly web pages. The lack of legal certainty, however, should not prevent individuals and libraries from undertaking the socially beneficial task of preserving digital information. The law explicitly authorizes some preservation actions (especially if the materials are not made digitally available to others), and a strong fair use defense can be built outside the library or archives.
I think its a fair thing to ask considering that archiving and caching are such integral parts of informational preservation. A truth we internet users (and especially geminaughts) face in 2022 is dead links and long gone servers. In 100 years the only chance of existance these files might still have are as relics sitting in some mega-archive on a zetabyte drive.
Should future generations be denied wellsprings of information just because a couple of authors got posessive and stoogey over their creative works when they weren't even profiting from? Do archivers really need to loose sleep at night from acidentally hosting a few copyrighted files when they don't financially profit from it? Do things like copyright even matter when the average author can't even financally back up their copyright claim by submitting formal DMCAs when it gets infringed? Or what if the host is in a country that doesn't respect copyright?
Heres an opinionated paragraph for sure. You wana know the REAL reason I don't worry about copyright permissions with text files and archives of small websites? Because in reality if you infringe or otherwise go against the authors wishes, there are no reprocussions.
Frankly put, the average person usually does not want to go through with the process of suiting up or putting in a official DMCA request becuase those options take time and money. Resources most average people don't have for a pointless cause like attacking a non-profit archive/mirror. If financial revenue and the click/ad view analytics aren't being impacted in any meaningful way, why put in the resources for no gain? Also what happens if the hosting server is in another country? Particularly one that doesn't even adknowledge copyright? Good luck enforcing your DMCA there. Lets not forget the very real possibility of the author dying. Lets just say ghost don't have much motivation to enforce copyright.
In other words 99% of copyright claims on the internet are hot air. You can theoretically claim anything you want to. In reality Its not about what you claim, its about what claims you can enforce. When it comes down to laywering up or STFU 99.9% of people will STFU because ain't nobody got time or money for dat. Unless you are a company with a well-funded legal department, good luck with the U.S legal system.
Well if nothing else I hope that this comforts some fellow archivers who might worry about that pesky little copyright notice. Archive away and call it a day. What are your feelings? I would be happy if this raised some further discussion amongst fellow gemini archivers.
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