Re: Software and Fair Use Doctrine

> We have been looking at software copyright on campus. Our intent is
> to comply.
>
> Recently our Dean of Libraries tossed out a klinker that "fair use
> doctrine" applied to software used by the staff and students of the
> University. That is (quoting section 107)
>
> " ...the fair use of a copyrighted work, including such use by
> reproduction in copies or phonorecords or by any other means specificed
> by that secition, for the purposes such as criticism, comment, news
> reporting, teaching (including multiple copies for classroom use),
> scholarship, or research, in not an infringement of copyright."
>
> ..
>
> "(1) ... for nonprofit educational purposes" indicates fair use.
>
> Does fair use apply to computer software?

Theoretically, for example see the Nintendo etc. cases. However, when applied, it only applied to the making of a very small number of copies, and in a situation where the alleged infringer was unable to figure out how the code operated any other way (i.e. reverse engineering).

> How far into the organization could this be pushed?
> - students
> - faculty
> - staff within the academic areas
> - staff within the business areas
> - staff within auxiliary enterprises

None of the above.

Section 107 requires a balancing test. The examples listed in the section are not absolute - just suggestive. I think that you will find that the usage suggested would balance against fair use. In particular, the suggested use deprives the copyright owner of substantial revenues.

> Does anyone have experiences with the BSA or SPA on interpreting the
> copyright laws in nonprofit educational institutions?

I don't think that you need to ask them. Look at the recent bust at I believe MIT.

In any case, I believe that most colleges have in place strictures and limits on copying excessive quantiites of material as suggested here. So you should ask yourself why the remainder of academia hasn't availed themselves of this golden oppertunity to save substantial amounts of money. After all, if the educational, etc. fair use exceptions were absolute, why would anyone ever buy a textbook?

> In the event of copyright violation, who is responsible...the staff
> member or the institution?

Probably all of the above (including the actual infringers) on the basis of contributory infringement and agency.

> - does it matter if we have an institutional policy of compliance?

Yes, to the extent that it is enforced, you may be able to minimize your exposure as an indirect or contributory infringer.

Bruce E. Hayden                 1720 South Bellaire Street
bhayden[_at_]csn.org                   1100 Colorado Tower Bldg.
(303) 758-8400                      Denver, Colorado 80222