Re: RE: Consideration in a Shrinkwrap Contract

>>> Bryan Taylor <bryan_w_taylor[_at_]yahoo.com> 10/08 9:03 AM >>> wrote in part:

• John Noble <jnoble[_at_]dgsys.com> wrote:
  > Your try was pretty good too, but "another copy" and "a machine" are > both ambiguous. Is it really one copy on one machine, or can you make > more than one copy on more than one machine.
  

This is the conservative reading of the statute. If it does give more, then I'm happy. I bet that 17 USC 117 has been the subject of a lawsuit so that the meaning of this is probably pinned down by judicial interpretation now. The copyright office might have interpreted this. I would hope a court would lean on their interpretation rather than wing it. <<<<<

I am aware of only a very few lawsuits concerning the meaning of section 117, none of which have focused on the ambiguity that you identify. All of them have turned on the fact that the statute uses the words "owner" of a lawful copy of the program rather than the draft "possessor." Since software companies take the position that all consumers are "licensees" rather than "owners," sec. 117 has essentially been rendered meaningless. See, e.g., MAI v. Peak (the particular result was later overruled, but not the reasoning); DSC v. Pulse; and Alcatel v. DGI. [Vault v. Quaid is the sole exception of which I am aware.]

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Wed Oct 11 2000 - 18:46:37 GMT