Micro-Sparc v. Amtype

Citation: Micro-Sparc, Inc. v. Amtype Corp., 592 F. Supp. 33 (D. Mass. 1984)(full-text).

Factual Background
Plaintiff, Micro-Sparc, Inc., published a monthly magazine for users of Apple computers. Each issue contained computer programs that readers could type into their computers and use. Plaintiff owned the copyrights to these programs and offered them for sale on disks.

Defendant, Amtype Corporation, offered a typing service. For a fee, Defendant would put on one disk all the programs appearing in an issue of the magazine. Defendant typed the programs into a computer, transferred them onto a master disk, and then copied them from the master disk onto blank disks.

Trial Court Proceedings
Plaintiff claimed that Defendant’s typing service constituted a copyright infringement, and sought injunctive relief and damages. Defendant responded that a recently enacted amendment to the copyright laws, 17 U.S.C. § 117, legalizes its activities.

Title 17 U.S.Code § 117 says that

"notwithstanding the provisions of Section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful."

The trial court granted Plaintiff’s motion for summary judgment, and denied Defendant’s motion for summary judgment. It held that the Subsection 1 exception did not apply because Subsection 1 does not permit a purchaser to authorize the Defendant to put the programs on a disk for him. In so doing, the Defendant did not input the programs. It instead creates a disk copy that the purchaser then uses to input the programs. Subsection 1 permitted the second input copy created by the purchaser, not the first disk copy created by the Defendant.

Further, the court held that the Subsection 2 exception did not apply because the purpose of this exception was to protect the use of a copy against a particular type of risk, such as destruction or damage by mechanical or electrical failure. This subsection did not permit the purchaser to authorize the Defendant to put programs on disks for archival purposes since the purchaser has not first created a “destructible” or “damageable” copy.

Congress did not enact a general rule that making back-up copies of copyrighted works would not infringe. Congress limited its exception to computer programs which are subject to destruction or damage by mechanical or electrical failure, which is not the case here.

The trial court held that 17 U.S.C. § 117 did not legalize Defendant’s activities because the activities did not fall within the exceptions. Thus, Defendant’s copying of the programs infringed Plaintiff’s copyright.