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Digital Preservation

The Library of Congress > Digital Preservation > Partners > Interview with David Kirsch

David Kirsch is a professor at the Robert H. Smith School of Business at the University of Maryland. Kirsch is the project leader of "Birth of the Dot Com Era," one of eight formal partnerships announced in September 2004 by the National Digital Information Infrastructure and Preservation Program (NDIIPP). Additional information about the Dot Com project is available at (external link) and (external link).

What goals have you set for your project above and beyond those of NDIIPP itself? What do you hope to gain from your participation?

Additional Goals

  • The collections that we are assembling for NDIIPP are the core of our project, but we are also preserving other nondigital aspects of Dot Com Era; we have some physical ephemera as well as various paper documents.
  • We are interested in raising awareness among corporations of the need to preserve for history; digital document retention strategies pose a potential risk to the future of business archives.
  • We want to help people who lived and worked through the Dot Com Era come to terms with the experience; there are many personal stories still to be told; one of our collecting sites — (external link) — is dedicated solely to capturing these personal stories.
  • We are interested in understanding the reasons why the Brobeck law firm failed; on the one hand, it was a singular event in the history of American legal practice, but it may also be a harbinger of other, similar events to follow.

Hope to Gain

  • A measure of closure for those who are still troubled by these events; the biblical scapegoat was the animal upon which the people heaped their sins and which was subsequently cast out into the wilderness; we hope these collections will allow people to bring closure to these events through contributing their memories and digital materials to our digital repository.
  • The reputation of the Library of Congress assures content owners that their materials will persist and that their rights will be respected.
  • The ability to point out that digital preservation is a critical issue meriting attention from Congress and from the scholarly professions that normally consume archival outputs (i.e., history, but also other related fields, economic sociology, etc); and to build awareness of the need for increasing education around the problem of digital preservation.
  • The development of technical preservation architecture and procedures that are outside our focus area.

What milestones have you achieved so far?

Since September 2004, our project has held a conference of well-respected legal ethics experts specifically to discuss the problem of attorney-client confidentiality in the dot-com records; secured the generous pro bono services of a top technology and intellectual property lawyer; appeared in San Francisco bankruptcy court to raise the profile of our project and the need for active digital collecting; secured limited access to the dot-com records in question for the purposes of appraising and characterizing them; and gained a commitment of cooperation from the bankruptcy trustee with control over the eventual disposition of the records.

What did you take away from the kickoff meeting for the preservation partners that was held at the Library of Congress on Jan. 12-13, 2004?

We came away from the kickoff meeting with a clearer sense of how our project related to the others, how the primary questions we were tackling on a daily basis would eventually become secondary questions that the other projects would need to deal with as well, and how the primary questions they tackled would eventually confront us as well. For instance, although we are initially concerned almost entirely with rights management issues such as confidentiality and copyright, we will eventually need to turn our attention to preservation metadata and issues of content selection. It’s also clear that we’re facing some of the thorniest rights issues ahead of some of the other projects. Hopefully, our experience will be useful to the rest of the network.

What would you particularly like to see discussed at this summer’s meeting?

We are very interested to get an update about the Library’s efforts to address the issue of copyrights of orphan works. We expect that many of our documents may eventually be covered by this policy.

What do you hope to learn/have you learned from the other partners?

We hope to learn from the other partners what it technically means to construct a digital "dark archive." Many nervous entrepreneurs and other keepers of dot-com records will surely ask us what the actual procedure is for operating such a dark archive and what implications it will have on their rights. To answer these legal and policy questions, we will need an understanding of the technical requirements for building and operating the digital dark archive.

I was perusing your Web site and saw that a portion of your project focuses on gathering oral histories. Is it a fair assumption to say that your project melds old and new; the old being oral histories, the new being late 20th century technology as the subject?

Yes, although our definition of "oral history" is a far cry from that in use among traditional oral historians. We tend to refer to it as "online oral history," or "open-ended online surveys." Interested readers can check out (external link); there’s a simple "tell us your story" box as well as a link to a longer, more interactive survey instrument. The idea is to allow people to share their experiences without having to wait for an individual historian to conduct an interview.

Can you make any general statements so far about the era?

Not really; the big questions are still too hard to answer. With Brent Goldfarb, a colleague here at the University of Maryland, I have looked at firm-survival data. So far, it appears that the survival rate of Dot Com Era firms is actually higher than that among new firms in other new industries. That came as quite a surprise to us. I'm sure we'll have other surprises as we move forward.

What are the barriers to collecting this information?

  • Where to look for information? Dot-com companies did not leave much trace. Would it be difficult to locate the information (outside of the legal records), even if it did exist? We believe that substantial amounts of information were probably destroyed (see answer to question below).
  • Some people are reluctant to share because of the embarrassment of failure. Most come around after speaking with us, but part of the problem is that we can't talk to everyone. Materials and perspectives have to arrive on their own.
  • Significant rights restrictions. Attorney-client confidentiality and contractual nondisclosure provisions all protect the information we want.
  • The information we want is also woven together with information outside our collecting guidelines, and extreme care must be taken to separate them, as the extraneous information is even more burdened by ongoing rights.

Can you make any statements about information you would like to have for your project that may no longer be retrievable? Or that may not be retrievable because of barriers such as copyright?

  • Information deleted pursuant to records retention policies. This is a huge problem.
  • Work done by dead dot-coms (outside of their legal records), which management did not perceive to be of historical value, was destroyed.

What types of work are your partners doing?

Gallivan, Gallivan & O'Melia is working to understand the complex structure of the data as it was preserved. In this task, we are also consulting with former employees responsible for database management and other experts associated with Brobeck’s IT department. Gallivan is also analyzing the cost that would be associated with a very limited, dark, bit-level preservation of the data.

What will be the barriers to making this material accessible?

We could make a substantial list of restrictions that would make the material inaccessible. All these restrictions would relate to the manner and context in which the materials were produced. The basic issue of copyright is always present, but we are also confronted with the expectation of confidentiality accompanying the attorney-client relationship, the trade secret protections that may be present in business documents of ongoing value, and the ethical and legal privacy protections governing information collected about employees.

In addition to the presence of these numerous rights, we must also contend with the fundamental difficulty of locating the appropriate rightsholders. Many of these issues could be dealt with by a simple waiver, but the more pressing problem will be finding someone with the authority to sign such a waiver in the first place.

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