At Authors Alliance, we speak out in favor of policies that make knowledge more discoverable and accessible for authors and the public. While our work is often within the realm of copyright, there are other, less obvious ways that the law helps make knowledge discoverable. In the United States, the custom of preserving presidential papers in so-called presidential libraries has led to the archiving of millions of valuable documents. Presidential libraries are veritable treasure troves, containing archives of presidents’ correspondence, documents, gifts, and more, and are by custom located in former presidents’ home states. Presidential papers can be excellent sources of research for authors, and, as we round the corner on Presidents’ Day, recent moves to make presidential papers more accessible to the public are worth celebrating.

History of Presidential Libraries

For the first 150 years of U.S. history, presidential papers and effects were considered to be the private property of the president, and remained so after he had left office. But in 1938, Franklin Delano Roosevelt proposed the concept of the presidential library after deciding he wanted to give his presidential papers to the public to create an archive of his time in office and beyond. The result was a privately constructed, publicly maintained institution where the public could freely or cheaply access records from FDR’s presidency and his time in the public eye before taking office. A similar path was followed to establish Herbert Hoover’s presidential library. To codify this practice, Congress established the presidential library arrangement through legislation in 1955. The first Presidential Libraries Act gave the Administrator of the General Services Administration the authority to accept presidential documents for preservation as well as receiving land, buildings, and equipment necessary to maintain and run the library. These arrangements allowed for the libraries to be substantially privately funded yet run by the government. 

A variety of subsequent laws strengthened the Presidential Library system. Beginning with the Reagan administration, two important laws related to government transparency—the Freedom of Information Act and the Presidential Records Act—worked together to make presidential papers the property of the public and make the records available to anyone who requested access after the president has left office (with certain limited exceptions for national security and similar issues). Presidential papers are presumptively open to the public after the administration has left office, and bound hardcover volumes of unclassified presidential papers are even available for purchase from the government.

Today, the nation’s presidential libraries are operated by the National Archives and Records Administration’s Office of Presidential Libraries, in partnership with a variety of public and private institutions like universities and foundations. While the Presidential Records Act requires only that textual records from presidential administrations be made public, by custom presidents often donate works of art, gifts, and other artifacts to presidential libraries, as well as correspondence from their lives before taking office. For this reason, many presidential libraries contain or double as museums of that president’s life.

Early Presidential Papers

Efforts to preserve presidential papers from administrations pre-dating the Presidential Libraries Act have also bore fruit. For U.S. presidents from George Washington to Calvin Coolidge, innumerable presidential papers have been donated or sold to the Library of Congress, which is then responsible for their preservation. Separately, presidential museums and libraries for former presidents before Hoover exist across the country, though these are not organized pursuant to the Presidential Libraries Act or run by the federal government.

Because no law required these early presidential papers to be given to the government, some collections are housed in universities or museums, typically in those presidents’ home states: the historical papers of John Adams and John Quincy Adams are housed in the Massachusetts Historical Society, the historical papers of Millard Fillmore are held by the State University of New York at Oswego, the historical papers of James Buchanan are held by Penn State University, the historical papers of Rutherford B. Hayes are held by the Rutherford B. Hayes Presidential Library and Museum, and the historical papers of Warren G. Harding are held by the Ohio History Connection. The lack of a uniform procedure for presidential papers has unfortunately made some of these early documents less accessible or unavailable altogether—the majority of Zachary Taylor’s presidential papers were lost when his son’s home was destroyed during the Civil War, and Chester A. Arthur burned an unknown quantity of personal documents from his presidency the day before his death. The Presidential Records Act effectively prevents this loss of knowledge and culture from happening again by guaranteeing that presidential textual records are preserved and available to the public in the future. 

Digitization and New Challenges

A next step in making presidential papers more accessible is digitizing the collections. It is not always feasible for researchers and authors to travel to presidential libraries to examine the papers in person, and the closure of most if not all of the presidential libraries due to the COVID-19 pandemic has only underscored the need for greater access to historical records. The Library of Congress finished a decades-long initiative to digitize the collections of the papers of early presidents held by the Library of Congress just last year, and the full collection is freely available online. With respect to the post-Coolidge government-sanctioned presidential libraries and the early presidents whose papers are housed elsewhere, efforts to digitize the collections have been mixed. But in recognition of the importance of making presidential papers freely available online, last year, the National Archives launched a presidential library “explorer” allowing the public to view and search through the digitized portions of the presidential library collections (though as of February 2021, only about 0.25% of the collection has been digitized). 

While digitization efforts for presidential papers have been uneven, navigating the presidential library explorer and browsing through the collections of the Library of Congress reveal fascinating historical information for authors and curious Internet users alike. Browsing through the collections is not always straightforward, with records being disorganized even in digitized form and containing many dry and often poorly scanned letters and speeches. But when one digs a bit deeper, it is not hard to uncover records which reveal an intimate behind-the-scenes glimpse of these presidents’ times in office: a love letter from Woodrow Wilson to his wife, Ladybird Johnson’s favorite recipes to serve on the Johnsons’ Texas ranch, a letter from Disney to Richard Nixon asking him to appear on the the Mickey Mouse Club television show, and a photograph of Bill Clinton jogging in D.C. during the early days of his presidency, to name just a few. 

Changes to the Presidential Library System

President Obama’s “presidential center” will be the first contemporary presidential library not established under the Presidential Libraries Act. The Obama Presidential Center, set to open in Chicago with construction to begin this year, will be entirely private, run by the Barack Obama Foundation, and will not house textual records from the Obama presidency at all. Instead, the Foundation, in partnership with the National Archives, will work to digitize the collection of textual presidential records that are the property of the public under the Presidential Records Act. The Obama Presidential Center will display “works of fine art, cultural artifacts, books, clothing, domestic furnishings, sporting equipment, and other materials that represent the era and accomplishments of the Obama Administration,” such as gifts from heads of state, rather than donating these to the public to be maintained by the National Archives, as presidents from Herbert Hoover to George W. Bush have done. The plan has been controversial, but financial changes to the arrangement between the National Archives and the private foundations that pay to build these libraries have made operating presidential libraries less financially viable for the private institutions. Regardless, the Obama presidential papers remain the property of the public, and his presidential center has framed the end product of digitization as “the first fully digital presidential library.” 

It is unknown whether President Trump will have a traditional presidential library, or even a private presidential center as Obama plans to build. The National Archives launched a placeholder website for President Trump’s presidential library or center, but has noted only that it will maintain his collected presidential papers (as required by the Presidential Records Act). And a recently-launched sophisticated parody website for the Trump presidential library, designed by a New York based architect who purchased the domain name the very week President Trump was elected, has garnered attention in the meantime. 

Presidential Records and Authorship

The presidential papers are intended to be a source of information for historical researchers, and are invaluable source material for a variety of books, films, and other research projects. In proposing the first modern presidential library (prior to the passage of the Presidential Records Act), FDR said that he sought to take the advice of historians which advised him not to break up his collection of papers, but dedicate it in whole to the public, “because, so often in the past, Presidential papers and other public papers have been culled over during the lifetime of the owner, and the owner has thrown out a great deal of material which he personally did not consider of any importance which, however, from the point of view of future history, may have been of the utmost importance.” Presidential libraries “preserve the raw materials that constitute our nation’s history,” creating invaluable information for authors desiring a unique perspective American history, including matters of diplomacy and conflict.  

Historian Robert Caro described his experience conducting research in the “forty thousand boxes” of documents in the Lyndon B. Johnson archives as interminable but incredibly illuminating. Caro was able to trace LBJ’s ascension from a junior member of the House of Representatives to a massive fundraiser and later a successful presidential candidate by paging through numerous memos, letters, and speeches, producing an acclaimed and groundbreaking biography of the former president. 

Today, with the digitization of presidential archives, the possibilities for scholarship are tremendous. Authors desiring an intimate and unique portrait of former presidents who are willing to browse through stacks—both physical and virtual—would be wise to peruse presidential libraries and archives, which, as the Caro example above shows, can yield new insights decades or centuries later. 

In December 2020, Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a comment with the Copyright Office in support of a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are published electronically and motion pictures. This week, commenters who oppose the petition for this exemption were given an opportunity to respond to our proposed exemption.

Text and data mining (TDM) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.

But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize. What’s more, Section 1201’s prohibitions force some TDM scholars to focus on works first published before 1925, which are in the public domain. Because authorship was far less diverse in 1925 than it is today, focusing TDM on pre-1925 texts privileges white male voices rather than being representative of authors contributing to the commons of knowledge today. For these reasons, our petition and supporting comments ask the Librarian of Congress to grant a new exemption to Section 1201’s anti-circumvention prohibitions that would allow researchers to bypass TPMs on e-books and films for the purpose of conducting TDM research.

On February 9, four comments were submitted in opposition to our proposed new exemption by 1) the Motion Picture Association, the Alliance for Recorded Music, and the Entertainment Software Association; 2) the Association of American Publishers; 3) the DVD Copy Control Association and the Advanced Access Content System Licensing Administrator; and 4) the Software and Information Industry Association. Opposition commenters raised concerns about the scope of activities and works that would be covered by the exemption, the intended beneficiaries of the exemption, and security measures for databases of decrypted copies of copyrighted works.

Our response comment is due on March 10, 2021, and we look forward to working with the commenters to address their concerns and with the Copyright Office as it evaluates our petition for this new exemption to facilitate TDM research. TDM researchers who have information they would like to share with us to support our response are invited to contact us today.

The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.

Yesterday, Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a comment with the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. Our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on both literary works that are published electronically and motion pictures.

Background: Section 1201 and Exemptions

Section 1201 of the DMCA prohibits the circumvention of TPMs used by copyright owners to control access to their works. It also prohibits the manufacture or sale of devices or programs designed to circumvent these TPMs. In other words, section 1201 prevents individuals from breaking digital locks on copyrighted works, even when they seek to make a fair use of those copyrighted works or engage in otherwise non-infringing activities. 

Because section 1201’s prohibitions can interfere with fair and socially beneficial uses of copyrighted works, the DMCA also provides for a triennial rulemaking process to grant temporary exemptions to the prohibitions. Authors Alliance has participated in each 1201 rulemaking cycle since our founding, petitioning for exemptions and their renewals to help authors enjoy their rights while ensuring their creations reach new audiences during the 2015 and 2018 cycles. For the upcoming 2021 rulemaking, we have petitioned for a new exemption that would allow researchers to bypass TPMs on literary works distributed electronically and films for the purpose of conducting text and data mining (“TDM”) research, in addition to our petition to renew an exemption for multimedia e-books. 

Text and Data Mining

Text and data mining refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use. But the current prohibition on bypassing TPMs in section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize.

Because literary works distributed electronically and motion pictures are protected TPMs, researchers—unable to bypass these TPMs due to section 1201—can turn instead to works in the public domain for their TDM research. With regards to films, this avenue is effectively unavailable, since works published after 1925 generally remain under copyright. For literary TDM scholars, literary works published before 1925 remain a potential alternative area of study, but focusing TDM on pre-1925 texts “further reinscribes white men as the center of the field and further marginalizes women and people of color.” Authorship was far less diverse in 1925 than it is today, so TDM research on public domain texts ends up privileging white male voices rather than being representative of authors contributing to the commons of knowledge today.

Our petition for a TDM exemption is accompanied by letters of support from 14 separate authors and researchers currently engaged in TDM research on literary works and films whose work has been hampered by section 1201, and two additional letters from experts who support TDM researchers. Here are just a few examples of their experiences: 

The Data Sitters Club

The Data Sitters Club is a group of scholars under the Stanford University Literary Lab, “a research collective that applies computational criticism, in all its forms, to the study of literature.” The Data Sitters Club explores research questions in relation to the well-known Baby-Sitters Club series, a series for elementary and middle school aged girls that was popular primarily in the 80s and 90s. The group would like to use computational analysis to investigate the extent to which the characters have distinct voices and explore the series’ treatment of religion, race, adoption, divorce, and disability. The Data Sitters Club sees their study as a step towards exploring the worldview of American women in their 30s and 40s who read the Baby-Sitters Club books as children. It also has the goal of investigating common tropes in the books to explore these questions further. 

There are over 200 books in the series, yet literary scholarship on the Baby-Sitters Club is sparse. Due to this gap, the power of TDM to shed new insights on large quantities of text, and the formative effect of children’s literature on its readers, the group sees a particular impetus to explore how the “iconic depiction of girlhood in the upper-middle-class American suburbs” has both mirrored and shaped its readers’ views of the world. Yet because the Baby-Sitters Club books were all written during the latter half of the 20th century, they remain under copyright, and the e-book versions are protected by technical protection measures, as is almost always the case with e-books. Because of section 1201’s prohibition on bypassing TPM, the Data Sitters Club cannot use the Baby-Sitters Club e-books for their project, and are instead forced to manually scan physical books and correct any transcription errors before they can apply their computational analysis to the texts, limiting the amount of texts they can study and detracting from the time they can spend on their important research questions. 

The Conglomeration of Publishing and Patterns in Fiction

Professor Dan Sinykin, an assistant professor at Emory University who teaches English and computational analysis, is currently at work on a book, The Conglomerate Era, which seeks to explore how the conglomeration of U.S. publishing changed fiction: in the 1950s, almost every publisher in the country was independent, but today, despite the continue presence of some independent publishers in the ecosystem, only five multinational media conglomerates dominate the trade market (soon to be four, with the planned merger of Penguin Random House and Simon & Schuster). Professor Sinykin would like to use TDM “to detect patterns of change across thousands of novels across decades” in a groundbreaking exploration of literary history. However, because he seeks to study works published after 1945, which remain protected under copyright, Professor Sinykin’s project is made much more difficult due to section 1201’s prohibition on bypassing technical protection measures. 

Because he cannot use the e-book versions of late-20th century novels to do his analysis, Professor Sinykin must use HathiTrust, a digital corpus of works under copyright that scholars can use for TDM purposes with subscriptions or institutional affiliations. Professor Sinykin points out the weaknesses of using HathiTrust, such as the cumbersomeness of using HathiTrust’s “data capsules,” including their limited computing power and the difficulty of accessing the capsules securely. The HathiTrust capsules are also limited to “holdings of select university libraries” and are not representative of fiction during the time period Sinykin wishes to study. Importantly, HathiTrust is not free, making the type of research Sinykin is currently undertaking inaccessible to scholars with fewer resources. If Professor Sinykin could bypass TPM on e-books and use those for his project, he could use more representative fiction texts and would thus be enabled to “write a better, truer book about conglomeration.” He could also teach TDM to his students—the next generation of scholars—to ensure that this work continues in the future. 

Text and Data Mining to Study Stylistic Elements in Film

Professor David Bamman is an assistant professor at UC Berkeley whose research focuses on natural language processing and cultural analytics, and whose current TDM project involves films. Professor Bamman also has experience applying natural language processing to a digitized collection of books which he and his team manually scanned themselves (similar to the Data Sitter’s Club’s workaround) due to concern over section 1201 liability if they instead bypassed TPMs. 

In 2018, he became interested in applying TDM techniques—computer vision and video processing techniques specifically—to film, and decided to compile a data set of films to explore whether directorial style in movies can be measured and quantified. Professor Bamman estimated that a dataset of approximately 10,000 films would allow him to conduct this research and explore how directorial style can be decomposed and measured, such as through types and lengths of shots and the color palette used in the film. Yet, cognizant of section 1201’s prohibition on bypassing technical protection measures, Professor Bamman purchased individual DVDs and underwent the burdensome process of playing them on a computer, and using “screen-capture” software to record the movie as it played in real time. This method does not violate section 1201, but proved to be insufficient for Professor Bamman’s project, as it would have apparently taken a human operator 10 years to manually screen capture enough films for him to complete his corpus. As a result, Professor Bamman has abandoned this line of research, despite seeing immense value in research questions around “historical trends in film over the past century.”

We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work preparing the comment. Responses from commenters who oppose the petition for this exemption are due February 9, 2021 and further comments in support of the petition, or from those who neither support nor oppose the petition, are due March 10, 2021. The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward.