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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010 - page 1 / 12

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I.

Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010

ISSUES IN SOFTWARE LICENSING AND COPYRIGHT

Some Differences Between Standard Literary Works and Computer Programs

  • A.

    Standard works say something

    • 1.

      Provide information, a public good, through copies. Information is nonrival (for any given level of production, the marginal cost of providing it to an additional person is zero) and nonexclusive (additional people cannot be excluded from consuming it).

    • a.

      Provide entertainment through copies

  • 2.

    Initial copy provides full value to possessor. No need for additional copies in order for possessor to obtain full value.

  • a.

    No need for license of any of exclusive rights of copyright owner (CO)

    • 3.

      Prior to electronic age, non-negligible marginal cost for additional copy.

    • 4.

      Copy necessary to obtain full value, so number of copies some measure of value obtained

  • B.

    Computer programs do something in a machine. “Software is a machine whose medium of construction happens to be text.” (R. Davis, 1992)

  • 1.

    Not a public good. Some informational value, but not in executable form.

  • 2.

    No value obtained by possessor from initial copy unless additional copy or

copies made

    • a.

      So need license of CO’s exclusive reproduction right unless provided by statute

  • 3.

    Product of electronic age. Easy to make additional copies and thereby get full value for others

  • 4.

    Additional copies not always necessary to obtain full value, so number of copies not necessarily a measure of value obtained

    • C.

      Much copyright law relating to computer software reflects this mismatch between

traditional purpose of copyright law and purpose of computer software (despite software’s important role in promoting “the Progress of Science” under U.S. Const., Art. I, § 8, cl. 8)

© 2010 Marc Temin

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