Re: click-wrap contracts and libraries

From: Tyler Ochoa <tochoa[_at_]law.whittier.edu>
Date: Fri, 31 Jan 2003 13:21:18 -0800

I don't know where the excerpt below is from, but the relevant section is Section 109(b) of the Copyright Act, not Section 119. [Section 119 provides a compulsory license for secondary transmissions by satellite carriers.]

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu

>>> glabbott[_at_]library.syr.edu 01/30/03 05:21AM >>> As noted below the shrink-wrap license may not matter in California as for the right to loan section 119 provides exemptions for some libraries.

      II.   THE EXEMPTIONS FOR NONPROFIT LIBRARIES AND                 
     
            NONPROFIT EDUCATIONAL INSTITUTIONS

      Section 119 of the Copyright Code makes unauthorized "rental, 

lease, or lending" of a computer program a copyright infringement if done for "purposes of direct or indirect commercial advantage," but provides two specific exemptions: one covering lending "for nonprofit

purposes by a nonprofit library," and a second covering transfer of possession of a lawfully-made copy from one "nonprofit educational institution" to another such institution or to faculty, staff, and students.
The intended distinction between these two exemptions is revealed by their legislative history.

Date sent:      	29 Jan 2003 21:19:22 -0500
Send reply to:  	cni-copyright[_at_]cni.org 
From:           	johnl[_at_]iecc.com (John R. Levine)
To:             	Multiple recipients of list
<cni-copyright[_at_]cni.org>
Subject:        	Re: click-wrap contracts and libraries

> > Before you go lending software to anyone, I would strongly suggest
> > that you talk to an attorney and have him look at the licenses.
The
> > penalties for copyright infringement can be quite stiff.
>
> But the guy asking the question is in California, not Virginia.
Since
> California isn't a UCITA state, is there any reason to think that
> shrink-wrap licenses matter in California? Copyright is no bar to
> lending original legitimately purchased copies of software.
Libraries
> do it all the time.
>
> Also the educational exemptions in 17 USC 110 might apply if running
> software is considered to be a display or performance of a
nondramatic
> literary work and the place that students use it is something like a
> classroom.
>
>
>
>
> --
> John R. Levine, IECC, POB 727, Trumansburg NY 14886 +1 607 387 6869
> johnl[_at_]iecc.com, Village Trustee and Sewer Commissioner,
> http://iecc.com/johnl, Member, Provisional board, Coalition Against
> Unsolicited Commercial E-mail

George L. Abbott
Head, Media Services Department
Syracuse University Library
Syracuse, NY 13244-2010
(V) 315-443-2438
(F) 315-443-9510
Internet: glabbott[_at_]syr.edu Received on Fri Jan 31 2003 - 21:22:08 GMT