Mark Lemley writes:
Has anyone read NLFC v. Devcom Mid-America, decided by the 7th Circuit
on Jan. 19, 1995? I just read the BNA blurb on that case. The case
apparently holds that accessing a copy of a computer program remotely
over a dedicated phone line using a "dumb terminal" does *not* make an
electronic copy of the program. [omitted material] The BNA excerpt
doesn't discuss RAM fixation. But if the program was
printed from the remote site, wouldn't it have to be stored in RAM at
that site, at least for the duration of the printing? Does this case
hold in effect that loading a program into RAM is not fixation for
copyright purposes(in conflict with the 9th Circuit's disturbing
result in MAI v. Peak Computing)?
I've taken a read through this case, and it doesn't look like it breaks
new ground at all [unfortunately ...]. The question was whether the
deft, hired to fix bugs in pltf's software, copied that software onto its
own computers. Pltf says it did so, and as proof, brought forward a
printed copy of the source code (for pltf's software) that deft had in
its possession. Pltf argued that because the evidence showed that the
printout came from deft's offices, deft must have copied the software.
The parties agreed that if the program *had* been transferred from the
installation site to defendant's computer and then printed out, that
would have constituted "copying" under the Copyright Act.
The court holds that this evidence is not sufficient to show that the
software had been copied onto deft's computers, because there was also
evidence that deft accesssed the installation site by means of a dumb
terminal and could have simply printed the code out from that machine.
[Why the court does not deal with the more obvious question -- why isn't
the *printing* itself, wherever the program resided, an unlawful "copy"
of the source code? -- is beyond me].
David Post
Received on Wed Feb 22 1995 - 19:33:14 GMT