Research On The DMCA Exemption For Software Preservation Of The United States

Many Libraries,Archives,and Museums(LAMs)have under-taken digital preservation initiatives.One aspect of digital preservation that has been receiving increased attention is persevering software.Software preservation is a logical extension to data curation.Software preservation usually requires operating the software in a way not permitted by the software license agreement.The temporary exception of the DMCA is a balance between the legitimate rights and interests of the public and the rights of copyright owners in the modern society of the United States of America,which provides a legal guarantee for Libraries,Archives and Museums(LAMs)to access computer software for preservation or reproduction.The legal guarantee method.Investigating the legislation on the exception of DMCA accessing computer software in the United States,The main purpose is to analyze the exception system how to protect the rights of libraries and other institutions to access computer software for preservation or copying,and provide useful reference for relevant Chinese legislation.Taking the legislation on the exception of DMCA accessing computer software in the United States as the research object,Utilize comparative analysis and legal axiology,First,trace the source of the exception system for accessing computer software in the United States,By defining the DMCA's temporary exception system for circumventing technical measures,and analyzing the background and characteristics of the the exception system of visiting computer software in the United States,so as to interpret the clause more pertinently.Analyze the three focus of the game in the hearing procedure before the exception of computer software is issued: "legal factors","non-infringing use" and "adverse effects",and then interpret the main content of the clause from three aspects: assumptions,behavior patterns,and legal consequences,It can be seen that the main body of circumventing technical measures can only be qualified libraries,archives or museums for the purpose of “legal preservation”.The types of works that can be avoided are limited to computer programs protected by TPMs or digital materials that rely on computer programs as access conditions.This article can better balance the interests between copyright owners and the public,and provides the necessary system guarantee for the long-term preservation of computer software.Through comparative analysis,we can see that China adopts a single "regularist" legislative scale in terms of technical protection measures.Actors can only choose to act in accordance with the regulations,and as judges there is no relatively free discretion.It can respond well to the challenges of the system,and the US copyright law combines the rule of law and factorism legislative model,taking into account the stability and flexibility of the law.Therefore,when supplementing,revising,and perfecting China's exceptions to technological protection measures,we can refer to and analyze the advantages of the US DMCA's temporary exception legislation,and then use it for reference.You can try to focus on "regularism" in terms of the legislative model,supplemented by "factorism",and addthe "access to computer software" exceptions.In terms of access to the subject,object and behavior of computer software exceptions,you can Appropriately and reasonably refer to the relevant legislation and practical examples of judicial practice in the United States to respond to the current needs of collection institutions such as Chinese libraries,museums and archives to "access computer software" for preservation purposes.