Re: DSC v. Pulse

On Tue, 16 Mar 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Those interested in software copyright law should see the unfortunate
> Federal Circuit opinion in DSC v. Pulse, issued last week. The court
> concludes that section 117 does not protect those who buy copies of
> hardware containing a program if a license agreement is attached
> limiting the buyer's rights, because the buyers are not "owners" in that
> case. [By contrast, buying the same hardware from a third party does
> make you an owner, and section 117 does apply].

Thanks for alerting me to this case, Mark. I'm covering 117 and fair use this week in my Protection of Computers and Software course. Very timely for me.

I agree that 117 ought to apply to all "rightful possessors" of copies, as CONTU recommended, but Congress did change that to "owners" of copies. It is a fair question whether the users here are owners or not. I liked the district court's more practical reasoning (one payment, unlimited time makes one an owner of a copy), but I really wish Congress hadn't screwed things up when they enacted 117.

> The court also limits Sega v. Accolade, strongly suggesting that
> temporary reproduction of a copyrighted program in an effort to identify
> the uncopyrightable components and build a compatible program is *not*
> a fair use. Those interested in the reverse engineering right should
> be very concerned by this case.

My first reading of the DSC v. Pulse case (admittedly just a skim) was that Pulse was arguing that the use by users was a fair use, not that Pulse's reverse engineering (if any) was a fair use. If that is the case, then this case doesn't challenge Sega v. Accolade at all. Perhaps both of us need to reread the fair use section of the DSC v. Pulse case.

     Regards,
          Bob Kreiss

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