What right does the owner of a computer program have to make copies of the program?
2007/// Filed in: Copyright Law
The owner of a computer program has the right to make a copy of that program for the following two purposes: 1) the copy is intended for archival (i.e. backup) purposes only and 2) the copy is created to utilize the computer program and not for the purposes of sale or commercial gain (1984 Congress amendment 117 of the Copyright Act). More recently, Congress passed the Digital Millennium Copyright Act (1998). This Act included provisions granting lawful owners or lessees of a computer program additional rights regarding computer programs. Specifically, under the provisions of the Digital Millennium Act lawful owners of computer programs have the right to authorize independent service providers to activate the machine for the sole purpose of repairing or servicing its hardware components. Consequently, a computer repair company does not infringe copyright law under these situations.
We must emphasize that while "owners" of computer programs have the right to make copies for the purposes specified above, selling or renting copies of the software would constitute copyright infringement. To understand these limitations, especially the inability to rent computer programs, it is important to understand "Shrink--Wrap Agreements." Under the first sale doctrine the purchaser of software could rent copies. To avoid this situation, software products are not ``sold", instead they are ``licensed." This license is a contract that grants certain rights and specifies limitations. Anyone who purchases any software and violates the terms of the agreement can be sued for breach of the contract. This arrangement enabled software companies to gain additional protection because the software was licensed and not sold. Consequently, no first sale occurs and the first sale doctrine is not triggered. This practice is known as the "shrink-wrap agreement" or the "click-wrap agreement", depending on whether the software is sold as a packaged product or if it is sold directly on the internet for immediate download. The user enters into a contractual agreement by breaking the shrink--wrapped plastic that seals the CD or DVD or when it clicks on the accept button to accept the terms of the agreement. These agreements typically replace many of the rights granted by copyright law with restrictions. While in the past there was some debate regarding the enforceability of these agreements, since the Electronic Signatures in Global and National Commerce Act became effective in 2000 the law makes it difficult to challenge the validity of click-wrap agreements.
While the amendment of the Copyright Act of 1990 prohibits rental of computer programs, it may be possible to do so in certain situations. For instance, nonprofit libraries may be permitted to lend software without authorization, and software intended for "limited purpose" computers such as video game devices may be rented in certain situations.
Finally, another area of user confusion relates to the rights involved in using shareware (trial software) and freeware (free software). It is important to emphasize that both of these forms are protected by copyright law and cannot be reproduced or distributed unless explicitly authorized by the copyright owners.
References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976
We must emphasize that while "owners" of computer programs have the right to make copies for the purposes specified above, selling or renting copies of the software would constitute copyright infringement. To understand these limitations, especially the inability to rent computer programs, it is important to understand "Shrink--Wrap Agreements." Under the first sale doctrine the purchaser of software could rent copies. To avoid this situation, software products are not ``sold", instead they are ``licensed." This license is a contract that grants certain rights and specifies limitations. Anyone who purchases any software and violates the terms of the agreement can be sued for breach of the contract. This arrangement enabled software companies to gain additional protection because the software was licensed and not sold. Consequently, no first sale occurs and the first sale doctrine is not triggered. This practice is known as the "shrink-wrap agreement" or the "click-wrap agreement", depending on whether the software is sold as a packaged product or if it is sold directly on the internet for immediate download. The user enters into a contractual agreement by breaking the shrink--wrapped plastic that seals the CD or DVD or when it clicks on the accept button to accept the terms of the agreement. These agreements typically replace many of the rights granted by copyright law with restrictions. While in the past there was some debate regarding the enforceability of these agreements, since the Electronic Signatures in Global and National Commerce Act became effective in 2000 the law makes it difficult to challenge the validity of click-wrap agreements.
While the amendment of the Copyright Act of 1990 prohibits rental of computer programs, it may be possible to do so in certain situations. For instance, nonprofit libraries may be permitted to lend software without authorization, and software intended for "limited purpose" computers such as video game devices may be rented in certain situations.
Finally, another area of user confusion relates to the rights involved in using shareware (trial software) and freeware (free software). It is important to emphasize that both of these forms are protected by copyright law and cannot be reproduced or distributed unless explicitly authorized by the copyright owners.
References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976