Re: what does a patent restrict?

On Thu, 07 Oct 1999, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
>
> On Wed, 6 Oct 1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
> >
> > Yes, I recall that there is a case saying "fixation occurs in
> > memory", though it seems pretty bogus to me. Of course, fair use is
>
> MAI v. Peak. The legal reasoning is sound.

This posting, and several others recently, have favorably cited MAI v. Peak, 991 F.2d 511 (9th Cir. 1993), and a recent case from the District of Nevada which apparently followed MAI (I haven't seen the Nevada case, however).

Contrary to the above posting, it is not clear that the "legal reasoning [of MAI] is sound" given that Title III, Sections 301-302 of the Digital Millennium Copyright Act, amending Section 117 of the Copyright Act of 1976, were enacted in response to MAI. The legislative history, House Conference Report No. 105-796 (Oct. 8, 1998), at page 76, clearly explains this: "A clarification in the Copyright Act is necessary in light of judicial decisions holding that such copying is a 'reproduction' under section 106 of the Copyright Act (17 U.S.C. 106)" (footnote citing to MAI v. Peak). Incidentally, sections 301-302 of the DMCA comprise the somewhat grandly titled "Computer Maintenance Competition Assurance Act."

Thus, MAI is no longer applicable when an independent service provider, such as a repair technician, operates a computer so that the software gets copied into the RAM; such "copying" is no longer a reproduction or infringement.

Certain other aspects of MAI v. Peak may still be good law, but a blanket statement as to its validity is unwarranted.

Alan Kabat
(Washington, D.C.)
<alankabat[_at_]aol.com> Received on Sat Oct 09 1999 - 14:44:38 GMT