(Sorry, just because this subject thrills me like none other. It is more complicated than I'd set out before. I read through 17 U.S.C. 101 (the obsolescence stuff before comes from 108). Basically it only refers to libraries and archives (check) but prevents users from taking copies outside the premises in digital format. It had a tangible library/archive in mind (which is cool for the issue here). And it was set up (probably) with the idea of phonograph records or something like that - or paper. These are not specifically software provisions. It's really complicated and I think, sadly, the cheapest and easiest way forward is the current limbo.
Okay this is purely my opinion, and purely idle thought: 17 USC 108 goes like this - a) allows libraries or archives to make one copy if 1) made without commercial purpose, 2) the lib/arch is open to the public [etc], 3) there's a copyright notice (or attempt to provide one). Under a) there is also a right to distribute, but the right of reproduction is limited by b ), c) and d). [ B) concerns unpublished works.]
c) right of reproduction limited to 3 copies for replacement of lost/damaged/etc or obsolete work if 1) the lib/arch has determined after reasonable effort that an unused replacement cannot be obtained at fair price; and 2) any digital format copy is not made publicly available outside the premises of the lib/arch in lawful possession [i.e. via a) or c)]. Obsolescence would then basically mean if the library can no longer find a way to fairly purchase a machine to display it - so a library or archive can then probably possess obsolete-format software as disk images.
[d)-e) Interlibrary loan stuff]
"f) Nothing in this section-- 1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;..."
//
This suggests quite strongly that one potential legal avenue - which I suspect MacintoshGarden could potentially employ - is for a library or archive, including a digital one, to take actual possession of the digital copy, as a copy of the obsolete software - obviously MacGarden's capacity to filter out non-obsolete software has been called into question. In possession of said software, they may display their copy on (digital) 'premises,' and they are not liable for unsupervised use of their reproducing equipment - i.e. download feature - so long as they display copyright warnings.
//
Conversely... people who misuse said reproducing equipment are liable - if such use exceeds fair use per section 107. f)4) explicitly subjects the lib/arch to any 'contractual obligations' when it obtains the copy (probably doesn't implicate EULAs then). Moreover, section g) 1) is unclear - because it implicates knowing that an individual or group is repeatedly reproducing a work. Outside the context of a general library it's a little murky. It probably wasn't directly contemplated [regarding a vintage-Apple digital software library...], regarding the legislative intent.
Basically it means that 68kmla generally serves its interests best just by snipping stuff. Would it have to? If this were a free speech forum itching for a test case (which ... it would never get to that point anyway), I think the case would be pretty strong on the same facts. But to be safe... the current policy is sound and probably the best way forward. I think it's incumbent on older users to reach out to new users with private messages if they feel so obliged.
But I've also suggested that there may be legal protections in a very stringent vetting of obsolete software. This may not be the place for that, although perhaps it's a call for a software preservation effort well beyond my expertise.)
**Also, final thought because I don't think I've mentioned this on 68kmla. I do think that in terms of Apple specifically, there's probably an informal view if it's ever come up that this type of usage - extremely old hardware/software that's still shockingly relevant and arguably continuous. At worst it possibly allows for minor publicity on occasion. There are no actual damages - which is really the primary reason most of these issues will never be litigated as civil matters, anyway.
Okay this is purely my opinion, and purely idle thought: 17 USC 108 goes like this - a) allows libraries or archives to make one copy if 1) made without commercial purpose, 2) the lib/arch is open to the public [etc], 3) there's a copyright notice (or attempt to provide one). Under a) there is also a right to distribute, but the right of reproduction is limited by b ), c) and d). [ B) concerns unpublished works.]
c) right of reproduction limited to 3 copies for replacement of lost/damaged/etc or obsolete work if 1) the lib/arch has determined after reasonable effort that an unused replacement cannot be obtained at fair price; and 2) any digital format copy is not made publicly available outside the premises of the lib/arch in lawful possession [i.e. via a) or c)]. Obsolescence would then basically mean if the library can no longer find a way to fairly purchase a machine to display it - so a library or archive can then probably possess obsolete-format software as disk images.
[d)-e) Interlibrary loan stuff]
"f) Nothing in this section-- 1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law;..."
//
This suggests quite strongly that one potential legal avenue - which I suspect MacintoshGarden could potentially employ - is for a library or archive, including a digital one, to take actual possession of the digital copy, as a copy of the obsolete software - obviously MacGarden's capacity to filter out non-obsolete software has been called into question. In possession of said software, they may display their copy on (digital) 'premises,' and they are not liable for unsupervised use of their reproducing equipment - i.e. download feature - so long as they display copyright warnings.
//
Conversely... people who misuse said reproducing equipment are liable - if such use exceeds fair use per section 107. f)4) explicitly subjects the lib/arch to any 'contractual obligations' when it obtains the copy (probably doesn't implicate EULAs then). Moreover, section g) 1) is unclear - because it implicates knowing that an individual or group is repeatedly reproducing a work. Outside the context of a general library it's a little murky. It probably wasn't directly contemplated [regarding a vintage-Apple digital software library...], regarding the legislative intent.
Basically it means that 68kmla generally serves its interests best just by snipping stuff. Would it have to? If this were a free speech forum itching for a test case (which ... it would never get to that point anyway), I think the case would be pretty strong on the same facts. But to be safe... the current policy is sound and probably the best way forward. I think it's incumbent on older users to reach out to new users with private messages if they feel so obliged.
But I've also suggested that there may be legal protections in a very stringent vetting of obsolete software. This may not be the place for that, although perhaps it's a call for a software preservation effort well beyond my expertise.)
**Also, final thought because I don't think I've mentioned this on 68kmla. I do think that in terms of Apple specifically, there's probably an informal view if it's ever come up that this type of usage - extremely old hardware/software that's still shockingly relevant and arguably continuous. At worst it possibly allows for minor publicity on occasion. There are no actual damages - which is really the primary reason most of these issues will never be litigated as civil matters, anyway.