Perma.cc and Web Archival Dissonance with Copyright Law

Abstract

This is a preprint. Please review and cite LRSQ published version. Harvard’s Perma.cc offers the solution to linkrot—the phenomenon that citations in academic journals to web materials disappears with the passage of time, resulting in “broken links” and disappearance of material from the Web. This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and caselaw. It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web. This analysis includes detailed analysis of “transformative use” and the four factors of 17 U.S.C. § 107. It will consider the liability of Perma.cc and participating libraries and institutions under theories of contributory infringement and vicarious liability, including as modified by 17 U.S.C. § 512(c) and (d), governing takedown notices. The article concludes that Perma.cc’s archival use is neither firmly grounded in existing fair use nor library exemptions, that Perma.cc, its “registrar” library and institutional affiliates, and its contributors have some (at least theoretical) exposure to risk, and that current copyright doctrines and law do not adequately address web archival storage for scholarly purposes. In doing so, it will question what the role of the scholarly Perma.cc citation ought to play—confirmation of scholarly propositions or preservation of and access to web materials. The material and conclusions in this article are important for legal authors, law review editors, and librarians (especially those who use, support, or are considering partnering with Perma.cc); so that they might better assess copyright compliance, especially when selecting materials for archiving, such as articles from news sites, blogs, and professional and scholarly papers, articles or books.