Re: Copying to Ram Memory

J. Bailey wrote:
>
> Greg Broiles wrote:
> >
> > The problem is that not every person who legitimately possesses or uses
> > a copy of a software program is an "owner" for s. 117 purposes, at least
> > in the Ninth Circuit. See _MAI v. Peak_ 991 F.2d 511, 518 (1993) and
> > _Triad Systems Corp. v. Southeastern Express_ 64 F.3d 1330 (1995). The
> > Ninth Circuit's hair-splitting re "ownership" makes the validity (or
> > lack of validity) of shrinkwrap licenses especially important.
>
> Good point, although in MAI (I cant speak to Triad until I've read
> it) wasn't the license a truly negotiated and agreed one, as opposed
> to a shrinkwrap?

I agree with your assessment of MAI. But one of the most noticable things about most (if not all) shrinkwrap licenses is that they start out by saying that this is a license and not a sale. If and when this becomes enforceable, I feel that the dynamics in the industry are truly set to change. I mention when this becomes enforceable because as I read the proposed UCC changes, they would pretty much accept shrinkwrap terms that are standard in the industry. And this one, along with disclaimer of all liability (except of course replacement of the media, worth approximately $.10 per floppy) are pretty standard today. Just not enforceable.

> Furthermore, wouldn't a license that forbade loading into RAM be
> "copyright misuse" (assuming that the software publisher was attempting
> some sort of tie-in as the reason for forbidding loading into RAM- I
> can't think why else a license would forbid such a copy).

I don't think the problem is a total ban on loading into RAM, (after all, then you might have a frustration of purpose claim), but rather severe limitations on when and by whom.

As things sit right now, shrinkwrap licenses being treated as sales, the first sale doctrine applies. This means that you can move software from computer to computer when you replace one, without having to go out and buy another version. It probably also means that you can sell or give it away when you are done with it. I would suggest that this is probably the driving force behind the new UCC section that covers software and shrinkwrap. There's some big money behind the drive for the changes, and it would seem to me to be either the own/license difference (i.e. first sale) or the waiving of liability that is at the heart of it. My vote is first sale, since it is most directly reflected on the software vendors' bottom lines.

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