Current section 117 of the Copyright Act of 1976 was enacted in the Computer Software Copyright Act of 1980 in response to the recommendations of the National Commission on New Technological Uses of Copyrighted Works (CONTU). Section 117 provides a limited exception to the blanket rule against copying, by allowing one who owns a copy of a computer program to copy the program as necessary to use the program or do machine maintenance or repair, and as an archival backup, subject to certain limitations.
Section 117 provides:
|“||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.
Under Section 117, the rights of a copyright owner in a computer program are limited such that the owner (but not a licensee, borrower or mere possessor) of a particular copy of a computer program may make a copy or adaptation of the program as an "essential step" in using the computer program in a computer or for archival purposes.
Any identical copies made in accordance with Section 117 "may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program." Adaptations made may be transferred only with the authorization of the owner of the copyright in the original program.
Essential step in the utilization of the computer program
Section 117(a) provides that "it is not an infringement of copyright for the owner of a copy of a computer program to make or authorize the making or adaptation of that computer program" under two circumstances. The first is if the making of the copy or adaptation is "an essential step in the utilization of the computer program in conjunction with a machine, and that [the copy] is used in no other manner." Essentially, this allows the lawful owner of a piece of software to install it on his machine, even if doing so requires copying the program from a CD-ROM to the hard drive or loading it from the hard drive into RAM, both of which are considered reproduction under copyright law.
The second circumstance in which Section 117 allows copying is if the copy 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." This provision allows one who owns a piece of software to make a backup copy for safekeeping, but requires him to destroy his backup copies if he sells or otherwise transfers his original copy or if his ownership otherwise ceases to be rightful.
A third subsection of Section 117 provides it is not an infringement for a machine's owner or lessee to make or authorize the making of a copy of a computer program if the copy is made solely as a result of the activation of a machine containing a lawful copy of the software, and the copy is used solely to repair or maintain the machine, and is destroyed immediately thereafter.
Owner of a copy of a computer program
Section 117's exceptions benefit the "owner of a copy of a computer program" or, in the case of machine repair and maintenance, "the owner or lessee of a machine." However, because most computer software is distributed subject to a license, rather than a conventional sale, the question arises (in much the same way as it does in the context of "first sale" under 17 U.S.C. §109) whether Section 117 allows copying by a person who has legally obtained a copy of a computer program, but licenses rather than "owns" the software. As with the analogous first sale question, courts are split on the issue.
- See Micro-Sparc, Inc. v. Amtype Corp., 592 F.Supp. 33 (D. Mass. 1984) (holding that purchasers of programs sold in printed form do not infringe copyright by typing the code into a computer in order to use the programs); Summit Tech., Inc. v. High-Line Med. Instrs. Co., 922 F.Supp. 299 (C.D. Cal. 1996) (holding that owners of opthamological laser system did not infringe copyright by turning on system to use it, causing a copy of the manufacturer's data table to be loaded into system 's RAM). Cf. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) (holding that loading of copyrighted software into RAM by a service company constitutes reproduction).
- 17 U.S.C. §117(a)(2).
- 17 U.S.C. §117(c); see also Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc., 431 F.3d 1374, 1375 (Fed. Cir. 2005).
- 17 U.S.C. §117(a),(c).
- Compare Krause v. Titleserv, Inc., 402 F.3d 119 (2d Cir. 2005) (holding client to be an "owner," for §117(a) purposes, of copies of computer programs written for it by consultant despite lack of formal title in copies, because it had paid consultant to develop programs for its sole benefit, copies were stored on client's server, and client had right to use or discard copies as it saw fit) with CMAX/Cleveland, Inc. v. UCR, Inc., 804 F. Supp. 337 (M.D. Ga. 1992) (holding that a licensee of a copyrighted computer software system and its employees were not entitled to computer program owner's defense to copyright holder's copyright infringement action, because the licensee and employees never "owned" the copy of the program, and there was evidence that the licensee was going to market the program); cf. ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310 (N.D. Ill. 1990) (holding that the defendant was not entitled to §117 exception because it acquired the copy from competitor and its possession was unauthorized).