Re: A crazy thought . . .

I said:
>>
>> I don't see how Mark's hypo 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?

and Mark Lemley replied (and Pamela Samuelson to the same effect)
>
> Yes, that is OK -- the question is whether the fact that you "give" a
> work to others on the net by copying it changes the 117 analysis.
>
> Note that in Lee's case, the "copy" the first user has made of the
> MS Word diskette is the one that goes on the hard drive. That copy,
> not the original, is the one that gets used -- it is the original which
> is "archival" in nature. Nonetheless, I suspect few would argue that
> section 117 doesn't protect loading a purchased program onto the hard
> drive.

I read 117 differently; isn't there an "or" between (1) and (2), making them disjunctive? If so then I can make a copy for "use" (the copy on my hard drive) and also make an "archival" copy. (Even without the statute, I figure most licenses expressly permit the making of a backup from the original; furthermore, since most software manuals tell you to run the program from your hard drive, it's arguable that the hard drive copy is authorized.)

Giving away a copy over the Net should be fine, so long as it is part of a transfer of "all rights in the program." Assuming the CONTU report accurately reflects legislative intent, it merely states that the transfer must be accompanied by destroying the status of "rightful possession" in the original owner of the copy. Cf. first sale.

I suppose one could get picky about whether these have to occur simultaneously, but I don't think that's a real issue.

Lee

Lee Tien
Attorney
tien[_at_]well.sf.ca.us
(510) 525-0817 voice
(510) 525-3015 fax Received on Wed Oct 11 1995 - 01:39:18 GMT