Re: A crazy thought . . .

From: Bruce Hayden <bhayden[_at_]copatlaw.com>
Date: Tue, 03 Oct 1995 07:20:58 -0600

> 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'm of two minds here. On the one hand, I reread 117 and this very nicely solves the problem. All you have to do is get over the "archive" problem and you have first sale.

But the unfortunately problem in my mind is that "archive" has a pretty well defined meaning in computer science. And this doesn't really fit.

> 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.

As noted above, I do not think that this sort of transaction would qualify as "archival" as the term is usually used in computer circles. Otherwise, its pretty slick.

Again though I am struck by the difference between how the law handles computer programs and everything else in Cyberspace. Sure, some people have been trying to stretch 117 to cover most of what goes across the Net. But that is all it is - a stretch. The term "computer program" also has a fairly well developed definition in the computer industry. And this message doesn't come close to qualifying.

The result is a double standard. You can legally backup the programs you have on your hard drive. But how much of what the average user has is actually "computer program"? Not really that much.

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The preceding was not a legal opinion, and may not be my employers'. Orignal portions Copyright 1995 Bruce E. Hayden,All Rights Reserved. My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                                bhayden[_at_]acm.org               
Austin, Texas                                  bhayden[_at_]copatlaw.com

Received on Tue Oct 03 1995 - 12:22:00 GMT