A crazy thought . . .

I've seen a lot of discussion, both after the Green and White versions of The Paper, about the first sale doctrine in cyberspace. Basically, the prevailing argument seems to have been that since transmission of files involves the making of copies, the first sale doctrine won't protect such transmission.

I wonder if section 117 provides a way around that, in the limited context of transmission of computer programs (section 117 does not appear to protect pure data transmissions). Section 117(2) allows the owner of a copy of a computer program to make an "archival copy", *provided she destroys all archival copies once possession of the program ceases to be "rightful.*"

If I send a program via the Net to a friend, can I characterize the copy that remains in my system as "archival"? Having given "my" copy of the program away, I would then have an obligation to delete my archival copies. But assuming I do, with the end result that only my friend has a copy, can I invoke section 117?

I can foresee some problems here -- is the copy "archival" in nature? Which one is the "new" copy? But I am curious as to whether anyone thinks this argument has a chance.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu Received on Mon Oct 02 1995 - 18:47:33 GMT