Limitations On Exclusive Rights: Computer Programs

In United States copyright law, Limitations on exclusive rights: Computer programs, section 117 of the US Copyright Act, in its current form was created as a direct result of CONTU.

CONTU (National Commission on New Technological Uses of Copyrighted Works; established by US Congress, operated 1975 - 1978) recommended that the wording of section 117 be repealed and replaced because of changes in technology from when the US Copyright Act was drafted and advances in computer technology. Because the placement of a work into a computer is the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability. Obviously, creators, lessors, licensors, and vendors of copies of programs intend that they be used by their customers, so that rightful users would but rarely need a legal shield against potential copyright problems. It is easy to imagine, however, a situation in which the copyright owner might desire, for good reason or none at all, to force a lawful owner or possessor of a copy to stop using a particular program. One who rightfully possesses a copy of a program, therefore, should be provided with a legal right to copy it to that extent which will permit its use by that possessor. This would include the right to load it into a computer and to prepare archival copies of it to guard against destruction or damage by mechanical or electrical failure. But this permission would not extend to other copies of the program. Thus, one could not, for example, make archival copies of a program and later sell some while retaining some for use. The sale of a copy of a program by a rightful possessor to another must be of all rights in the program, thus creating a new rightful possessor and destroying that status as regards the seller.

The changes recommended by CONTU were approved with one important change. Instead of possessor of computer program congress decided to use the word "owner" of computer program. This one change by congress has resulted in the odd situation where software makers claim that purchasers do not own the software but rather only license it. The courts have split on whether or not the claim in the software agreement that a purchaser does not own the software is enforceable and thus require an additional license to use the software.

Section 117 is a limitation on the rights granted to holders of copyright on computer programs. The limitation allows the owner of a particular copy of a copyrighted computer program to make copies or adaptations of the program for any of a number of reasons:

1. Utilization of the program. The user is allowed to install the software to his hard disk and run the software in memory.
2. Making backup and archival copies. The user is allowed to make copies of the software to protect himself from loss in the event of the original distribution media being damaged.
3. Making copies of software in order to repair or maintain machines, provided that the copies used in repairing the machine is destroyed after the repair or maintenance is complete.

The law allows any copies that are created for the above purposes to be transferred when the software is sold, only along with the copy made to prepare them. Adaptations made can not be transferred without permission from the copyright holder.