Copyright scholars and policymakers have largely approached the shift from analog to digital media through the lens of copy-making and sharing, often overlooking the inherent fragility and ephemerality of digital objects due to their dependence on specific software and hardware. This software dependency poses a significant threat to long-term access to digital cultural heritage, from historical newspapers and architectural records to video games and scientific research, as obsolete or commercially unavailable software renders these digital files meaningless. While the challenges of technological obsolescence, media fragility, and market failures have long been recognized by librarians and archivists as harbingers of a “digital dark age,” the specific implications of software copyright for cultural preservation have been largely absent from policy discussions.

This paper argues that the Supreme Court’s decision in Google v. Oracle offers a critical turning point for addressing the copyright impediments to software preservation and access. Justice Breyer’s majority opinion, informed by his long-standing scholarship on software copyright, articulates a robust understanding of fair use, particularly its application to functional works like software. By emphasizing the “transformative” nature of uses that enable new purposes (such as teaching and research) and by clarifying that copying entire works can be fair when tethered to a valid transformative purpose, Google v. Oracle provides a strong legal foundation for cultural heritage institutions. Coupled with the insights from Apple v. Corellium, the Code of Best Practices in Fair Use for Software Preservation, and successful DMCA rulemaking exemptions, this ruling empowers libraries and archives to leverage fair use to ensure the enduring accessibility of software-dependent digital heritage, thereby realigning copyright with its fundamental purpose of promoting progress.