Re: A crazy thought . . .

Lee Tien observes and asks:
>
> I don't see how Mark's hypo [about use of section 117 to justify a
> copy made to effect first sale rights] is any different from my being
> a legitimate owner of a copy of Microsoft Word, simply giving it to
> a friend, and then deleting all my copies. Isn't that perfectly OK?

Yes, it is OK. Back when US policymaking on copyright law at least attempted to maintain the balance of existing law, first sale rights, by CONTU's analysis, were preserved as long as one deleted one's own copies after transfer to another person. One hypertechnical reason Lehman might give for distinguishing between retention of the first sale rule in that case is that section 117 applies to software; it says nothing about other copyrighted works. So if the thing Mark is transmitting does not satisfy the statutory definition of computer program, it can't qualify for a section 117 privilege.

I think the cleaner solution to the first sale rule "dilemma" for works in digital form is to say that the intermediate copy made for purposes of effectuating first sale rights is a fair use under the Sega v. Accolade ruling. I also like Seth Greenstein's theory which makes Mark's point less of a stretch:

>> It is "archival" in the sense that it is being retained in case the
>> transmission is unsuccessful; then, once success has been confirmed,
>> the archival copy is destroyed.

If Lehman, et al. had tried to maintain the balance under existing law, he would either have broadened section 117 to reach all works in digital form or proposed a 117A to provide a nonsoftware counterpart. After all, when Congress considered the software issue, they recognized that copying in order to use should not be infringing, which is why 117 was developed.

Under the Lehman interpretation of copyright, it is a prima facie infringement to load the contents of a CDROM encyclopedia onto one's computer in order to look at and access it because this act involves making copies of the work (trespassing on 106 rights) that is not justified under 117.

As Seth noted, there is either genius or madness in the interpretations of copyright to which computer law drives us.

Pamela Samuelson
Visiting Professor of Law, Cornell Law School <psa2[_at_]pop.pitt.edu> Received on Thu Oct 05 1995 - 23:03:03 GMT