235 lines
10 KiB
Plaintext
235 lines
10 KiB
Plaintext
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SOFTWARE AND COPYRIGHTS: REGISTRATION, NOTICE AND WHY
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rev. 01.08.92
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By Charles B. Kramer
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Attorney
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NY and IL Bars
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You own a copyright in software you create the moment you "embody
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it in a tangible medium", at least unless you create it under a
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contract that provides otherwise, or as an employee. What this
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means is, you own a copyright in the software you create the moment
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you preserve it by writing it down, dictating it to a tape
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recorder, or saving it to a disk. Since you own the copyright, you
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have, without further formality, all of the exclusive rights of a
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copyright holder. These, to quote the Copyright Act, include the
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exclusive rights to "reproduce the copyrighted work in copies" and
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to "prepare derivative works".
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To *register* your copyright, you must file a two page application
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with the Copyright Office. Getting the application and filling it
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out is not difficult, and is a good idea. Here's how to get the
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application, how to learn to fill it out, and some related things
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people who create software should know.
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FIRST: GET THE APPLICATION
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The best way to get the application and learn how to fill it
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out is to write to the Copyright Office at this address:
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Publications Section
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Copyright Office
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Library of Congress
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Washington, D.C. 20559
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and ask for Application Form TX and Circular 61 ("Copyright
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Registration for Computer Programs"). The application and Circular
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are free.
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The Application must be accompanied by $20 and "deposit
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material", which is typically a print out of the source code of
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your program. Giving your source code to the Copyright Office
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makes it public, which is something you don't want to do if (as is
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usually the case) the code contains any of your "trade secrets".
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A trade secret, generally speaking, is confidential information
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that relates to your business. The confidential information need
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not be clever, but it must not be generally publicly known. You
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lose your trade secrets, among other circumstances, when you
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publicly divulge them, and when someone independently discovers
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them and makes them public.
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To enable you to register your copyright without surrendering
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your trade secrets, the Copyright Office permits deposit material
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to be less than all of the source code, and permits the secret
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portions of the source code to be "blocked out", so long as the
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deposit material is any of the following:
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1. 1st and last 25 pages of source code, with portions
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containing trade secrets blocked out; or
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2. 1st and last 25 pages of object code, plus any 10
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consecutive pages of source code with no blocked out
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portions; or
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3. 1st and last ten pages of source code, with no block
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outs.
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If you are unclear as to what pages reflect the "first" and
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"last" of any particular program, use any reasonable system for
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identifying them in a consistent way. If the entire program is
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consists of less than 50 pages of source code, the deposit material
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should be all source code with trade secret matter blocked out.
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Whichever option you choose, more than half of the code on
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materials you send for deposit must *not* be blocked out.
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Is registering your copyright in software you create this
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simple? Almost! "Form TX", for instance, may not be the best one
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to use if your program principally generates original graphical
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images. And slightly different rules apply when your program
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doesn't contain trade secrets, and when you wish to register a
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revised version of a program you've already registered. You will
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find Circular 61 useful in providing information with respect to
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these and other situations.
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SECOND: COPYRIGHT NOTICE
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Whenever you "publish" your program (by, for instance,
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distributing copies of it to the public by sale, rental, lease or
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lending), you should place a "notice of copyright" on each copy.
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The form of the notice is:
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Copyright [year first published] [name of copyright owner]
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If you prefer, you can use the abbreviation "copr.", or can use
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the "C in a circle" symbol rather than the word "copyright" spelled
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out. If you use the "C in a circle" symbol, however, make sure the
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"C" really is in a circle, and *not* merely in parens, like this:
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(c).
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Copyright notice must be placed "in such manner and location as
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to give reasonable notice of the claim of copyright". In the case
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of software, this means placing the notice where it is likely to be
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seen, preferably on the disks containing the software and near the
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program title on the screen displayed when the program is started.
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Keep in mind that copyright *notice* and copyright
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*registration* are separate matters. As a result:
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1. You should use copyright notice when you publish your
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program whether or not you register your copyright in
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it.
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2. You should register your copyright whether or not you
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publish the program.
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3. The year in the copyright notice is the first year of
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publication, and is unrelated to the year you
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registered the copyright.
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THIRD: WHY USE NOTICE, AND WHY REGISTER?
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If you created your program on or after March 1, 1989, you
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don't lose your copyright in it even if you publish it without
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putting copyright notice on it. And, as mentioned, you own a
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copyright in software you write even if you don't register the
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copyright. So why use copyright notice? And why bother to
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register the copyright?
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The benefits of using notice include: (1) if the work is in-
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fringed, the infringer cannot claim its infringement was
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"innocent", and cannot get damages assessed against it reduced on
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that basis; (2) notice informs the public of who copyright owner is
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(which might be handy if you're the copyright owner, and someone
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wants to get a license from you).
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The benefits of registering the copyright include: (1) if you
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have to prove infringement, registration makes it easier to prove
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that your work was created first; (2) for works created in the U.S.
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(and certain other works) you have to register before you can file
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an infringement action; (3) registration may enable you to get
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statutory damages and attorneys fees if you should win an
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infringement action.
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FOURTH: IF YOU MARKET YOUR PROGRAM AS SHAREWARE
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The Copyright Office permits the recordation of documents
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"pertaining to copyrights", which include, among other documents,
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copyright assignments, employment or independent contractor
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agreements (if they specify who will own the copyright in software
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the employee or contractor writes), and wills (if they specify who
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will own a copyright upon someone's death). Circular 12 from the
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Copyright Office explains the procedure and some of the benefits
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derived from recording such agreements.
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In October 1991, the Copyright Office created a separate
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procedure for recording documents pertaining to shareware.
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"Shareware", in the words of the Office, is
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"copyrighted software which is distributed for the
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purpose of testing and review... subject to the
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condition that payment to the copyright owner is
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required after a person who has secured a copy decides
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to use the software."
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The documents that can be recorded under this procedure are
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those, like the "license.doc" files that often accompany shareware,
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which govern "the legal relationship between owners of computer
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shareware and persons associated with the dissemination or other
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use of computer shareware". Recording shareware related documents
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is not a substitute for registering the copyright in the shareware
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program itself, which should be done using the same procedures by
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which the copyright in other computer programs are registered.
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FIFTH: WHEN DO YOU NEED ASSISTANCE?
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The above are general rules, and the information any particular
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programmer may need in a particular instance could be different.
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Here's examples of the circumstances in which an attorney's advice
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can be helpful:
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1. An attorney can help you decide if your program has any
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patentable elements. You might first consider, however,
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the League for Programming Freedom's convincing argument
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that software patents may be disastrous to the future of
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software development. The League can be contacted through
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CompuServe at:
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Internet:league@prep.ai.mit.edu
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2. Who owns the copyright to software can become uncertain
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when the software was created either by two or more
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people, or was created in whole or in part in the context
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of an employment or independent contractor relationship.
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The uncertainty can usually be eliminated by use of an
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agreement, which in appropriate cases, could take the
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form of an employment, independent contractor,
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joint-venture, copyright pool, or other form of
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agreement. The agreement should be recorded with the
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Copyright Office as a document pertaining to copyright.
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3. When a program is developed cooperatively by people, an
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agreement between the co-developers is sometimes used
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that sets forth their respective rights as to
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distributing and further developing the program, and as
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to sharing money made from it.
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4. If your program isn't wholly original (if it is,
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instance, derivative of another's work, or if it
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incorporates public domain code), you might want
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assistance in figuring out how to describe your program
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on the Copyright Office's form.
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5. When your software contains "trade secrets" that can be
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seen by people other than yourself, you might want
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more information about how trade secrets are
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protected.
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6. If you market your program under a trademark, you might
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want to federally register the mark.
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CHARLES B. KRAMER
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Attorney
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NY and IL Bars
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CompuServe 72600,2026
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Internet 72600.2026@compuserve.com
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(212) 254-5093
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rev. 01.08.92
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