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.

Lee Tien:
>
> 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.
>

A fair argument, as long as you consider loading a program onto a hard drive to be an "essential step" in its use. I don't think this argument would have been persuasive 10 years ago -- convenient, perhaps, but not necessary. But the size of current programs may suggest that (at least if they come on floppy disk, rather than CD-ROM) the use of a hard drive is "essential" to run the program effectively.

Nonetheless, Lee and I come to the same result in the end, I think -- 117 may help preserve the first sale rights (of programs, but not data) in the case of electronic forwarding. Now to convince Bruce Lehman . . . :)

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu Received on Wed Oct 11 1995 - 15:55:11 GMT