The Policy Challenge of Digital Preservation

INTRODUCTION

It is an understatement to say that massive advancements in digital media and content technologies have thus-far been some of the most crucial technological developments of the 21st century. Between software for either professional or casual functions, and the ever-expanding trove of digitized entertainment media, the amount of digital content produced only increases as peoples across the world receive access to the interconnectivity offered by the internet. However, given the inherent immateriality of digital content, a massive question and problem exists surrounding digital content, especially in regard to its preservation. Given the intense economic, social, cultural, and political value of digital and digitized materials, how can and should governments handle the risk of such materials becoming permanently inaccessible to those who possess them?

This study seeks to examine the problem of digital preservation through a critical and analytical lens, by introducing, explaining, and then commenting on a specific and understudied instantiation of said problem as a case study for further analysis. In conducting this examination, this study contributes to filling a striking gap in scholarship regarding digital preservation, and offers an introductory look at the topic from which additional study can be performed following from thereafter. The study first considers the background and specifics of digital preservation as a regulatory problem, outlining the particular threat of “abandonware” as especially deserving of regulatory attention. It will then move to conduct a policy assessment of regulatory options for the stated problem, looking for potential solutions. Ultimately finding paths for continuity with existing copyright and preservation policy surrounding so-called “orphan works”, the study concludes by suggesting that states and companies both move to update existing preservation methods to explicitly address digital materials.
While not a wholly effective “fix” to the problem-at-hand, the study finds that this policy agenda would nonetheless be a marked improvement over current regulatory ambiguity, and a solid starting point for future developments.

BACKGROUND: THE "ABANDONWARE" THREAT

First coined by Peter Ringering in 1996 and defined in 1997, abandonware refers to, simply put, “abandoned” software, that which is either no longer supported by its developer, and/or is no longer available for purchase or usage (Abandonware, 1996-2020). In its original formulation, the term only concerned console or PC videogames, but overtime has expanded in the internet vernacular to refer to any digital software which meets the aforementioned criteria of (un)supportedness and (un)availability (Dictionary, 2019). The problematic nature of abandonware’s existence, from the earliest mentions of the term, concerned what was and is fundamentally a copyright problem, although one whose effects reverberate beyond the pages of copyright law itself, and into questions surrounding basic access to software overall.

Concerns over abandonware going back to the 1990s (when the term was first defined) arose within a specifically American copyright context. When tech, computing, and gaming companies would drop support for a piece of software or another digitally accessed product, it was rendered unavailable long before its copyright expired under the 50+ year copyright regime of the United States, making any further (legal) acquisition of said product impossible unless it was later re-released (Abandonware, 1996-2020). Abandonware distribution, therefore, began with an acknowledgement of its technical status as software piracy, but with the caveat that the then-illegal distribution of the otherwise discontinued software was necessary for its long-term preservation (Abandonware, 1996-2020).

In the original context of videogames within which the notion of abandonware and its distribution originated, the notion that preserving (contra copyright) old videogames from becoming inaccessible to future consumers once their hardware loses official support remains present to this day in discussions of copyright regulation policy. As recent as mid-2022, Japanese artist-turned-politician Ken Akamatsu announced via Twitter his support for efforts to legally preserve older videogames in a playable state via copyright reform, a policy which would help to at-least partially resolve the issue of video game abandonware in Japan (Landaverde, 2022). However, despite promising hopes such as Mr. Akamatsu’s support of copyright reform on behalf of saving abandonware videogames, the broader problem of abandonware and digital preservation remains a massive threat for consumers, governments, and producers alike.

Beyond the term’s original scope of videogames, the abandonware-copyright problem is applicable to any sort of digital content imaginable. Given the current trends of some film and television companies releasing their content (past and present) exclusively on purely digital streaming services, the eventual shutdown of said services has the potential to create a new era of digital-era “lost films” and episodes. Similarly, the recent shutdown of online textual archives such as Z-Library by the United States Government (on copyright infringement grounds) have demonstrated the massive risks associated with digitized content (Woodcock, 2022). When terabytes-large databases and archives of preserved information, content, and materials that would otherwise remain impossible to legally access (due to an unwillingness of copyright holders to maintain support) can be unilaterally annihilated from the internet and therefore public preservation and maintenance, the world faces the threat of its ever-expanding digital heritage disappearing in the blink of an eye should archaic copyright laws rear their heads. Such a threat is due to a variety of factors relating to, and following from, copyright regimes themselves, but perhaps the two most pressing of these factors are:

1. Stakeholder interest, and the
2. Archaicity of existing copyright law.

Regarding these two factors, it must be said that factor (1) is merely a matter of copyright-holder self-interest, and can therefore be said to be rationally motivated, and prescriptive rather than an unforeseen occurrence as factor (2) is. Given the aforementioned case of Z-Library, the removal of such a massive database of digital materials occurred on the alleged grounds of copyright infringement of the various documents and books’ original owners and publishers, who would (with legal right) object to the unlicensed redistribution of their (digital, and sometimes physical, in the case of scans of existing books and manuscripts) property without payment. Even with this legal case considered, however, the danger of the case study still stands as a frightening precedent for the status of digital content at-large. When large swathes of information and content are subject to instant and unilaterally enacted mass-deletion at the whim of individual actors, the striking impermanence of any and all digital content stored via hosted online platforms is made clear to all actors involved.

Factor (2) however, is not a matter of interest, but one of law failing to keep pace with technological innovation. When the Digital Millennium Copyright Act (DMCA) was passed in the United States, for example, in 1998, the term abandonware had only existed for around two years, and therefore such an act did not on-passage contain any explicit protections for abandoned software works, much less referring to such works by the term now more-commonly used. This historical point, combined with the fact that online-only software was considerably less prevalent when many contemporary copyright laws were written than it is now (especially with reference to the so-called “software as a service” online licensing phenomenon common since the 2010s), serve as additional claims that advances in the existential form of software itself have fundamentally changed the way such software is utilized, exacerbating major gaps between existing copyright law and the things it governs. These claims reinforce the notion that to avoid issues of preservation in the present and future, copyright laws should be updated to match the current (and presumed upcoming) status of software sales and user-experience.

Overall, these two factors combined help to represent a simplified reality for an extraordinarily complex problem: current (especially American) copyright law jeopardizes the future existence and preservation of current and past digital materials. Even with the copyright issue highlighted, however, the broader question of digital content preservation remains. Should they examine the issue from a regulatory perspective, governments must reckon with how to balance the interests of both corporate owners wishing to maintain copyright security and minimize piracy, as well as those of consumers seeking to preserve digital heritage material which they either lacked the opportunity to, or are no longer able to, properly access.

PRESERVATION POLICY: COPYRIGHT CONTINUITY

In seeking to rectify and mitigate the problem of digital preservation (as instanced in abandonware and other such copyright case studies), there are a variety of regulatory policy approaches available on both the public and private level.

Firstly, governments might seek to expand their existing content archives to encapsulate more digital materials. Public entities such as the United States’ Library of Congress, which already preserve a myriad of physical and digital media products deemed historically significant, could easily (given the current ubiquity of digital content access) act pre-emptively, and purchase special historical-preservational licenses for abandonware or other “orphaned” digital materials (Library of Congress, 2017). Alternatively, should such an option fail, or a company prove uncompliant in assisting in preserving their own (significant) materials for consumer and/or public benefit, governments could move to automatically move abandoned/orphaned digital content to the public domain/open-source formatting once private support ceases.

While such a policy might prima facie seem overly paternalistic and infringing on private copyright for content that (possibly, albeit not at all probably) could be re-released/reinstated, it would not in-fact be without legal precedent. The notion of “orphaned works” refers to those properties which are held under copyright protections, but whose owners are no longer able or willing to profit from or properly maintain such protections (European Union, 2013-2020; United Kingdom, 2015-2022). Such properties/materials are legally problematic to preserve and digitize for posterior usage, and as a result several countries, including the USA, UK, and the nations of the EU, have implemented policies aimed at moving around copyright to preserve the orphaned materials (European Union, 2013-2020; United Kingdom, 2015-2022; United States, 2015). Given the existing framework for films, books, and other mediums, there is no reason in-principle that the longstanding arguments in favor of abandonware distribution could not be repurposed into an official codification for preserving “digital orphaned works”. This approach would be the simplest, as it again is merely iterating and developing on an existing framework, and has already been broached (at least in-kind) by politicians such as Japan’s Akamatsu – and therefore should be inherently appealing to interested regulatory authorities.

Regarding the potential objections of private copyright holders, that such approaches blatantly disregard legal ownership of intellectual property and copyright protections, and represent a sort of “legalized digital piracy”, a response from regulatory actors can defer to the basics of regulatory theory itself. Firstly, it can be argued that the either the neglect of companies to maintain their own digital properties, or their outright choice to abandon support for such properties, represents a market failure to balance consumer and producer interests, by rendering unavailable potentially significant digital artifacts and material, while providing no legal alternative. Given that software, especially that such as video games, which possess as artistic works considerable and meaningful artistic and potential cultural/historical value, is subject (especially in digital-only and/or online-only formats) to the same preservation pressures and risks as other any other form of potential orphaned or lost media, they should enjoy the same preservation and access protections as said forms. Secondly, the advance of technology (if unforeseen by companies who simply cannot update existing software for newer hardware and server realities, and therefore choose abandonment over support) can be labeled an externality which warrants external regulation to ensure long-term preservation is possible despite technological obsolescence. This argument, aside from being compatible with the study’s aforementioned point regarding the necessity of protections for works with potential artistic value, additionally rebuffs the idea that copyright laws, when applied to unsupported products of any value, should not inhibit third-party preservation/conservation efforts. Either way, a case can be made that the interest of preservation, in the case of orphaned and abandoned digital materials, overrides the interest of (un-maintained) copyright from a regulatory perspective.

It must additionally be mentioned, for the sake of debate, that copyright holders and publishers do (again) have the right to maintain their intellectual property rights in terms of distribution insofar as their works have not entered the public domain. However, in seeking to expand debate and discussion on the topics of abandonware and digital preservation vis-à-vis the framing of copyright law, this study asks, but will not examine here, whether software, once abandoned, should not simply become part of the public domain, or at the very least become free from litigation for preservational use and access on an unofficial level. Regardless of one’s position on this matter, the fact that such questions remain unanswered nearly 30 years after the term “abandonware” itself entered the technological lexicon only further raises the need for both broad and narrow-scale reforms to the legal and copyright status of software and digital media.

CONCLUSION

In conclusion, there exists a strong regulatory case for digital preservation. Through updating existing copyright laws regarding orphaned works and acting on longstanding triggers including externalities and market failure flags, a path towards the preservation of our ever-evolving digital heritage is less complicated than it might originally seem. Through proper regulation and good policy, abandonware might one day be abandoned no-more.

Michael Medina is currently pursuing a Master’s Degree in Public Policy at the University of Tokyo’s Graduate School of Public Policy, to be completed in 2024. He holds a Joint Honours MA Degree in International Relations & Philosophy from the University of St Andrews, and specializes in Technology Policy, Realist International Relations Theory, and Political Ethics.

REFERENCES

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