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Copyrights & Computer Software Part 4

Copyright 1992 by S. Kitterman Jr. and the Las Vegas PC Users Group, 
316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.  
This file was originally printed in the January/February 1992 issue of 
The Bytes of Las Vegas, a publication of the Las Vegas PC Users Group, 
and may be reprinted only by nonprofit organizations.  
Please give proper credit to the author and The Bytes of Las Vegas.
Copyrights and Computer Software: Part IV

                 by Sam Kitterman, Jr., LVPCUG 

          [The purpose of these articles is to give general 
          information regarding copyrights and how they pertain to
          protection of software.  It is not intended to constitute
          legal advice nor should it be relief upon to address a
          particular situation since the tone of these articles is
          general in nature.]

     In these articles I have reviewed various aspects of the
Copyright Act, including such matters as what is copyrightable, the
rights under copyright law, and who is considered the owner of the
copyright in a particular work.  
     Yet, what rights do you have when you purchase an authorized
copy [hereinafter I'll refer to such as the Copy] of a particular
work?  More specifically, where you purchase certain software, what
rights do you have to that software.  In this article, I'll begin
a discussion of those rights. 
          When discussing the rights of a buyer of the Copy, there
are certain matters that must be remembered.
          First, remember that several of the rights possessed by
the owner of the copyright are (1) control copies of the Work and
(2) control distribution of those copies of the Work.
          Second, remember that ownership of a copyright is
ownership of a tangible piece of property.   Consequently, the
copyright owner has the right to use that property as he or she
sees fit, including the right to license others certain rights to 
the copyright or to sell those rights in total to another person. 
          For example, if I own the copyright to the music and
lyrics of a particular song, I have the right to license another
person/party, such as a band, to record that music/lyrics and sell
that record to the public.  I can also decide to license certain
other rights, such as the sheetmusic rights, to another
person/party and by such efforts, increase the "fruits, so to
speak, that I can get from that one work.
          Since the owner of a copyright has such abilities and 
such is often exercised by way of contracts and agreements, the
rights a buyer of the Copy will have will be determined by two
sources: (a) the Copyright Act (the primary source) and (b) the
contract between the seller and the buyer of the Copy.
          Clearly, the buyer of a Copy has the right to use that
Copy for its intended purpose.  For example, if I purchase a
commercially produced video tape of a movie, I have the right to
possess that movie and view that movie.  Yet, does that entitle me
to turn my house into a neighborhood theatre and charge others a
fee for watching the movie?  Or, if I purchase a non-fiction book,
do I have the right to take excerpts from that book and incorporate
such into a book I am writing on the same subject?
          Such questions are dealt with by the doctrine of "fair
use".  Found in section 107 of the Copyright Act, "Fair Use"
entitles a buyer to use the Copy, "use" including the right to make
copies of the Copy, for various purposes.   As further stated
therein, those rights are tied to 

               purposes such as critcism, comment, news
               reporting, teaching (including multiple copies
               for classroom use), scholarship, or research....

     As explained by one commentator, "fair use" itself is defined as

               a privilege in others than the owner of a 
               copyright to use the copyrighted material
               in a reasonable manner without his consent,
               notwithstanding the monopoly granted to the
               owner by the copyright.
H. Ball, The Law of Copyright and Literary Property 260 (1944).
As also noted by the United States Supreme Court, fair use is "an
equitable rule of reason".  Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 448 (1984) (a case dealing with the
right of owners of VCRs to tape television programs at home).
     Although that section does spells out some allowed purposes,
there is no list of approved purposes.  Rather, the Act sets forth
certain factors by which one can determine whether the right of
"fair use" will be applicable to a particular situation.   Those
factors are as follows:
          (1)  the purpose and character of the use, including
               whether such use is of a commercial nature or is
               for nonprofit educational purposes;

          (2)  the nature of the copyrighted work;

          (3)  the amount and substantiality of the portion used
               in relation to the copyrighted work as a whole; and

          (4)  the effect of the use upon the potential market for
               or value of the copyrighted work.

     Applying these factors to the examples set forth above, what
is the result:
          My idea of charging admission to view videotapes in my
house would violate the Copyright Act because:
               (a) the purpose/character of my use is commercial.
               (b)  since a movie embodied in a video tape is for
               the express purpose of watching that movie, my use
               interferes with the rights of the copyright owner of
               that movie; and,
               (c)  if I allow others to watch that movie in my
               home for a fee, then I am robbing the owner of that
               movie's copyright the ability to gain from that
               particular "market".
          As for my use of excerpts from another's book for my own
book, that is a far closer call.  It will depend upon the nature of
the excerpts themselves, how much I'm taking from the other's book,
and the reason(s) I'm using those materials rather than creating my
own.   Indeed, if all I've taken from that book is factual
materials such as dates or historical information and I rewrite
that information in my own words, then I'm most likely not only not
infringing because copyright protection of factual information is
subject to certain constraints, but also the fact that such would
fall within the gambit of "fair use".
          What if I purchase software? What are my rights to that
software? Can I use that software to create my own applications?
Those questions will be the topic of next month's article.

Copyright 1992--S. Kitterman Jr.

[Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney 
with the firm of Quirk, Tratos & Rothel; he specializes in issues 
related to computer software. This is the fourth of a series 
of articles Sam is writing for The Bytes of Las Vegas.
It was originally published in the January/February 1992 issue of The Bytes 
of Las Vegas, the official newsletter of the Las Vegas PC Users Group.]

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