> Following deliberation, the Copyright Office ruled in late October 2003 that four exemptions should be added to the anti-circumvention clause of the DMCA, to be valid until the next Copyright Office rulemaking in 2006, including two that are related to the Internet Archive's original comments: [...]

It's past 2006 now. This text seems outdated. Furthermore, it states:

> In 2003 the Internet Archive, as part of research into vintage software archiving, discovered possible archiving issues involving the Digital Millenium Copyright Act. This could make it impossible to legally archive early computer software and games, even for accredited institutions wishing to store limited amounts of non-distributable, archival images.

I don't believe we're looking at "non-distributable archival images" here.

I suppose we'll just need to wait for someone to sue the Internet Archive and have the EFF step in.

I'm not sure if even the EFF can rationally justify the amount of copyrighted materials on there.

I think the sheer quantity of really valuable copyright-free things on there would be a pretty good case.

This is one of my favourite things on the internet: https://archive.org/details/EALand_FinalCountdown

And it would probably vanish in a few years without something like archive.org.

DMCA exemptions are for the additional restrictions imposed by the DMCA on circumventing "access controls", i.e. DRM, even for otherwise noninfringing purposes. This is separate from plain old copyright infringement, i.e. making/distributing copies without permission: that has certain exemptions baked into the law, including fair use, but isn't subject to the periodic Library of Congress rulemaking.

In this case, archive.org is distributing copies of the software to everyone's browser, and I don't think there's any plausible case that it's fair use or that any of the other exemptions apply. I'd expect it to count as infringing in most non-US jurisdictions as well, though probably not all.

In practice, though, even if Apple decides to do something about this (unlikely), they'll probably just send a takedown notice rather than actually sue the Internet Archive. I'd call it a calculated risk on the Archive's part.