Re: Shrinkwrap Licenses - Reply re UCC2b

There appears to be a basic conflict between the concept of "computer program" as it has developed under the U.S. copyright law over the last twenty years or so, and the definitional notes on this matter in the July 1998 draft of UCC2b. Note 6 to the definitional section appears to suggest that a computer program for copyright purposes is limited to what it terms "functional operations (program)," while the rather vague notion of "communicated content (informational content)" would not be covered. This distinction is unusual from a copyright perspective, and, indeed, may serve to inhibit the development of dynamic new programming services over the coming years as distributed integration software continues to emerge in the Internet environment. The distinction drawn in the draft UCC2b between "programs as operating instructions," and "'informational content' communicated to people," does not reflect the scope of copyright protection for computer programs under the current law. While it may be argued that this definitional confusion may eventually be settled by federal copyright preemption of disputes, there may be much confusion in the interim.

What the UCC2b draft may be trying to address is the nature of protection where a computer program, viewed as a derivative work for copyright purposes, is based on or incorporates a preexisting audiovisual work. To the extent such a program is interpreted, and identifiable elements from the preexisting work are displayed on a monitor or otherwise communicated to a human, there may be accountability issues between the provider of the program service, and the owner of rights in the underlying works, but this does not change the nature of the program itself for licensing purposes. There may also be new business practices involving encrypted package/ /container/mobile program/etc. technology, where a distinction between the program that incorporates an underlying and the work itself may be useful; however, these developing practices require careful analysis of federal copyright policy in order to avoid unnecessary confusion in the Internet marketplace. There are also important patent and communciations law issues to consider in this context.

Is this topic is of interest for discussion purposes?

Regards,

Patrice Lyons
Law Offices of Patrice Lyons,
  Chartered
Washington, D.C. 20006
<plyons/0003432266[_at_]mcimail.com> Received on Wed Aug 26 1998 - 17:58:57 GMT