Re: Copyright & Discovery

Bob Stock's question does come up with some regularity in litigation, with regard to both manuals and the software itself. Personally, I feel very uncomfortable about copying even in that context, and try to arrange for inspection and review rather than production, but if that is unacceptable for some reason (usually the other side doesn't want you to know what their experts are looking at) I have sought permission or at least tried to give notice to the owner before copying someone else's software. But, as readers of this list will expect, that can be difficult with older software -- company out of business, bought and sold several times, etc. And usually it's that kind of hard-to-find software that is most significant in this context -- in some litigations I've had the only working copy of a piece of commercial software that was famous in its day. (I think I may be the only person who knows where you can get your hands on a copy of Visicalc Advanced Version for the Apple III computer!) Other lawyers I know, including sad to say the leading firms in Silicon Valley, take the view that copying for purposes of litigation is a fair use or an exception or something and basically ignore the issue. So I fight on principle and make the judge or magistrate judge order me to copy, which should protect my client. I have to say the courts have never seemed to share my squeamishness, but I've never gotten in trouble for making the argument and it can be useful to make the point that you really do respect other's copyrights.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Sat Nov 07 1998 - 19:26:26 GMT