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





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  • 2.

    UMG Recordings, Inc. v. Augusto, 558 F. Supp. 2d 1055 (C.D. Cal. 2008)

    • title to promotional CDs sent to industry insiders passed to them despite label saying they were licensed for personal use only and remained the property of the record company and prohibiting sale – plaintiff did not intend to regain possession, no recurring benefit to plaintiff; only benefit of license to plaintiff would be to restrain trade; also constitute gifts under postal law, 39 U.S.C. § 3009

  • 3.

    Microsoft Corp. v. Big Boy Distrib. LLC, 589 F. Supp. 2d 1308 (S.D. Fla.

      • 2008)

        – first sale defense inapplicable to software manufactured outside

    • U.

      S. since not “lawfully made under this title”

  • IV.

    Statutory Adjustments for Computer Programs

    • A.

      As result of Computer Software Copyright Act of 1980, extra right of “owner of a

copy of a computer program” to make (or authorize) another copy or adaptation provided that it is


  • 1.

    “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,” § 117(a)(1), or

  • 2.

    for archival purposes only, with all archival copies destroyed if continued possession of the program “should cease to be rightful,” § 117(a)(2)

  • a.

    Exact copies so made may be transferred, along with initial copy, only as part of transfer of all rights in program. § 117(b)

  • b.

    Adaptations so made may be transferred only with authorization of CO. § 117(b)

  • 3.

    Does “another” mean “one other” at a time?

  • 4.

    Wall Data Inc. v. Los Angeles Cty. Sheriff’s Dept., 447 F.3d 769 (9th Cir.

    • 2006)

      – department copied software by hard disk imaging (copying software from CD onto single “master” hard drive and from there onto other hard drives) onto 6007 machines while having license only for 3663, but said that configuration permitted access by only licensed number –

jury rejected “essential step” defense – in challenge to jury instructions, court held that department was only licensee, not owner, of copies of software, so § 117(a) not applicable – even if it had been owner of copies, copying beyond licensed number was a matter of convenience, not “essential step” in use of software

As result of Computer Software Rental Amendments Act of 1990, owner or possessor of copy of computer program may not, without authorization, for direct

  • -


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

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