This is a code of best practices in fair use, describing the ways that fair use can be useful to software preservation in common, recurring contexts.
Fair use is the right given in U.S. copyright law to use copyrighted material without payment or permission, under some circumstances. A long pattern of judicial decisions applying Supreme Court precedent shows that an assessment of fair use typically depends on the answers to two questions:
- Is the use transformative—is the purpose for which preexisting copyrighted material is reused different from that for which it was originally created?
- Is the amount of material used appropriate to the purpose of the new use?
If so, it is likely that fair use applies. A fuller explanation of fair use law is in Appendix One.
This Code was made by and for the software preservation community, with the help of legal and technical experts. It provides librarians, archivists, curators, and others who work to preserve software with a tool to guide their reasoning about when and how to employ fair use, in the most common situations they currently face. It does not provide shortcuts in the form of prescriptive “guidelines” or rules of thumb. Nor does it seek to address all the possible situations in which software preservation professionals might employ fair use, now or in the future.