Re: Business Software Alliance

I think the issue on the BSA probe comes down to burdens of proof.

Section 106 makes it infringement to an infringement to reproduce a copyrighted work. Loading a program into memory for use is now pretty much seen as a reproduction, and in any event, loading it to your hard disk clearly is.

So the issue of whether copying has occurred cannot be seriously disputed. No one is claiming that there's any exemption or other limitative feature such as fair use that would excuse copying.[1] The only dispute, then, is whether the copying was authorized.

Without consulting any case law, it seems to me that the issue of authorization is one of defense, and not of the prima facie case of copying. Therefore, the burden of proof on this point falls to the party claiming that the copying was indeed authorized.

In other words, yes, I think that if software is found on your machine, you can be found liable for infringement if you're unable to support the claim that it's an authorized copy.

[1] I acknowledge that you might be able to raise an argument that a 117(a)(1) limitation applies, and that, as an owner of the copy, you're privileged to make copies as needed as an essential step in the utilization of the program. But that alters the form, and not the substance of the analysis. In that case, instead of having the burden to prove authorization, the defense will have the burden of proving ownership, which amounts to the same burden for this kind of issue.

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Terry Carroll         |
Santa Clara, CA       |            
carroll[_at_]tjc.com       |
Modell delendus est   |