171 lines
8.3 KiB
Plaintext
171 lines
8.3 KiB
Plaintext
Copyright 1992 by S. Kitterman Jr. and the Las Vegas PC Users Group,
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316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.
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This file was originally printed in the March 1992 issue of The Bytes of
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Las Vegas, a publication of the Las Vegas PC Users Group, and may be
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reprinted only by nonprofit organizations.
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Please give proper credit to the author and The Bytes of Las Vegas.
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Copyrights and Computer Software: Part V
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by Sam Kitterman, Jr., LVPCUG
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[The purpose of these articles is to give general
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information regarding copyrights and how they pertain to
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protection of software. It is not intended to constitute
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legal advice nor should it be relief upon to address a
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particular situation since the tone of these articles is
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general in nature.]
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When you buy software, what rights do you have? Generally
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speaking, a determination of those rights involve not only the
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Copyright Act but also contract and licensing law.
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When one purchases software, be it commercial "shrinkwrap" or
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shareware, one usually finds a "License Agreement" enclosed with
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the software. Indeed, many commercial manufacturers of software
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enclose the software in a sealed pouch upon which the Licensing
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Agreement is printed, i.e., preventing the purchaser from claiming
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lack of knowledge of the agreement since he or she should have read
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the license before opening the pouch. That licensing agreement
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determine a number of your rights to use of the software.
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What rights you may have under the licensing agreement will be
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dependent upon the language of that agreement. However, most
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licensing agreements follow certain "boilerplate" provisions such
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as:
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most agreements follow the general trend of allowing you,
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the "licensee" of that software, to install that software
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on one PC, and to allow you to make an archived
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copy/back-up of the software; and,
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most agreements also follow the general trend of denying
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you any right to install/use that software on more than
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one machine or to allow others use of that software,
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including making a copy of that software for their own
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use, e.g., the crime of pirating software.
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Again, the Copyright Act itself has put further limitations
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upon these rights.
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Under the doctrine of "first sale", a buyer of software
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previously had the right to rent, lease, or resell that software to
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others so long as he had first acquired possession of the software
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by purchasing it him/herself.
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Embodied in Section 109(a) of the Copyright Act, the "first
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sale" doctrine is as follows:
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Notwithstanding [other provisions of the Copyright Act],
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the owner of a particular copy...lawfully made under this
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title, or any person authorized by such owner, is
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entitled, without the authority of the copyright owner,
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to sell, or otherwise dispose of the possession of that
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copy....
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Indeed, this doctrine was the basis for allowing software stores,
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such as Omni Video here in Las Vegas, to purchase software and rent
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it to the public for a fee.
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Needless to say, copyright owners of commercial software
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became quite concerned at this apparent loophole in the law. Not
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only were they unable to collect any revenue from those rentals but
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furthermore, they became concerned that members of the public
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renting software would make unauthorized copies thereof and in
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doing so, would "rob" the owners of revenues they should have
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received when commercial software was purchased.
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Those concerns became so great that the commercial software
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industry lobbied Congress for an amendment to the Copyright Act, an
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amendment limiting the effect of this doctrine of "first sale".
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Needless to say, they succeeded.
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As of December 1, 1990, a new law went into effect. Known as
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the Computer Software Rental Amendments Act of 1990, that amendment
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changed section 109 of the Copyright Act to prohibit
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any person in possession of a particular copy of a
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computer program (including any tape, disk, or other
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medium embodying such program [from disposing of or
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authorizing the disposing of that computer program]
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by rental, lease, or lending, or by any other act
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or practice in the nature of rental, lease or lending.
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Please note: this law only applies to software purchased on or
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after December 1, 1990. Software purchased prior to that date is
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still governed by the "first sale" doctrine.
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Although this is a new law effecting the use of computer
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programs, it is actually tailored upon an earlier law, one known as
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the Record Rental Amendment of 1984. Enacted in 1984, that law
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applied similar controls to the renting, leasing or lending of
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authorized phonorecords.
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There are several exceptions to this Act.
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First, a purchaser of software may continue to dispose of such
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software by renting, leasing, or lending it where he has the
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authorization of the copyright owner for that program. Needless to
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say, whether obtaining such authorization is possible is highly
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questionable.
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Second, disposing of such software may be done where it is NOT
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for a commercial advantage, direct or indirect. For example,
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nonprofit educational institutions may continue to rent, lend or
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lease software to "faculty, staff or students".
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Nonprofit libraries may also continue to lend computer
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programs where such is done for a nonprofit purpose and where the
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library ensures that "each copy of a computer program...lent by
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such library has" the copyright notice affixed to the program's
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packaging.
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Third, computer programs embodied in certain "machines" may
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still be rented, leased or lent without violating this new law.
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More specifically, the law will be inapplicable to two types of
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computer programs:
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(1) computer programs embodied in machines or
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products "which cannot be copied during the ordinary
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operation or use of the machine", e.g., calculators,
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automobile electronic systems, etc.; and,
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(2) computer programs embodied or used "in conjunction
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with a limited purpose computer that is designed for
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playing video games"[e.g., Nintendo, Sega], including
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limited purpose computers that "may be designed for other
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purposes". However, if that limited purpose computer can
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be used for copying of computer programs, then such a
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system will not fall under this exemption.
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However, there is an interesting endnote to this particular
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law. It has what is called a "Sunset" provision, i.e., this law
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will self-terminate on October 1, 1997. Any rentals, leasings, or
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lendings of software after that date will not be in violation of
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this Act. It would seem that this provision was added so that this
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Act would coincide with the Record Rental Amendment Act of 1984's
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Sunset provision.
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In summary, if you purchase computer software since December
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1, 1990 and you rent, lease, or lend it to others for commercial
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gain, you will be in violation of the law. Needless to say, this
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is a law that is being vigorously enforced by the industry, usually
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by the Software Protection Association.
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Needless to say, the moral of this lesson is: If you want to
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use commercial software, be legal or face the risks. Copyright
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infringement not only is prosecutable by civil lawsuit but also by
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criminal action brought against the infringer by the U.S.
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Attorney's Office.
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----------------------------------
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Copyright 1992--S. Kitterman Jr.
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[Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney
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with the firm of Quirk, Tratos & Rothel; he specializes in issues
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related to computer software. This is the fifth of a series
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of articles Sam is writing for The Bytes of Las Vegas.
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It was originally published in the March 1992 issue of The Bytes of Las
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Vegas, the official newsletter of the Las Vegas PC Users Group.]
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