AMICUS CURIAE BRIEF OF SOFTWARE PRESERVATION NETWORK, AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF COLLEGE AND RESEARCH LIBRARIES, ASSOCIATION OF RESEARCH LIBRARIES, AND LIBRARY FUTURES INSTITUTE IN SUPPORT OF DEFENDANT-COUNTER CLAIMANT-APPELLEE CORELLIUM, LLC AND AFFIRMANCE

Much of the cultural heritage of the last century and of future centuries will be lost if libraries, museums, archives, and others cannot lawfully preserve software for research and reuse. Indeed, some of the cultural heritage of the last century is already lost or in grave danger because it consists of or relies on software that has not been preserved or made accessible. See generally Digital Preservation Coalition, The ‘Bit List’ of Digitally Endangered Species, https://www.dpconline.org/digipres/champion-digital-preservation/bit-list (last visited December 14, 2021). The copyright monopoly can provide rightsholders a useful incentive to create and publish new works, but unlimited rightsholder control would chill preservation and research access, putting software and all digital cultural heritage at risk. As the Supreme Court recently explained, “exclusive rights in computer programs are limited like any other works,” and “fair use can play an important role in determining the lawful scope of a computer program copyright.” Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199 (2021). Google also enshrined the importance of fair use as a check on software vendors’ market power, a core concern of the Commission on New Technological Uses, whose report resulted in the inclusion of computer programs within copyright’s subject matter. Id. at 1198 (software “copyright ‘should not grant anyone more economic power than is necessary to achieve the incentive to create.'”). The district court rightly recognized that access for research is a protected fair use of software, and this court should affirm that holding.
Appellant's arguments against fair use fly in the face of precedent, up to and including Google. Fair use requires neither the abridgement nor the alteration of the work used. The transformation in “transformative use,” which lies at the heart of the protection offered by the fair use doctrine, refers not to literal alteration but to the presence of “something new and important” in the user’s purpose. Google, 141 S. Ct. at 1203. In evaluating whether software is used transformatively, courts must “go further” to examine not just the most basic functionality of the software (which will remain the same across all uses), but the “more specifically described ‘purpose[s]’ and ‘character’” of the secondary user. Google, 141 S. Ct. at 1203. Anything less “would severely limit the scope of fair use in the functional context of computer programs,” placing core fair uses, including use “for teaching or research,” at risk. Id. The purpose of the secondary use here is research, which has been found to be a transformative purpose where the works used were not originally intended for research. A rightsholder cannot block transformative uses merely by setting up its own licensed competitor, nor can it chill transformative services by threatening secondary liability for all user activities.
Cultural heritage institutions rely on fair use for routine preservation and research support activities, especially for digital materials. Digital preservation inevitably requires making copies, adaptations, and (when access is provided) distributions, public displays, and public performances of in-copyright works. Without these interventions, works will be lost as fragile digital media deteriorates and becomes obsolete. Since all digital files rely on software to render them perceptible to humans, the preservation and use of original software is an essential part of the cultural heritage sector’s strategy for preservation and research use of digital cultural heritage. Literary archives, business records, public records, works of fine art and design, and virtually all other varieties of research objects are now primarily created and stored in digital formats. Emulation technology enables preservation and research access to digital materials beyond the lifespan of fragile and obsolete hardware. If fair use is applied reasonably and consistent with precedent, libraries, archives, and museums can carry out their traditional missions and ensure long-term preservation and access to digital cultural heritage. If copyright holders are given absolute control over research uses, digital cultural heritage could be lost forever.