Home > Legal, Technology > Proposed Changes to Software Copyright Law (§ 117)

Proposed Changes to Software Copyright Law (§ 117)

Since the creation of section 117 by CONTU in 1978, computer software and the way it is used has been constantly evolving. Due to current legislation, licensing, and archival practices, portions of section 117 have become outdated and are in need of revision. In this proposal, I will seek to identify two of these outdated elements and suggest modifications in order to better address current and future computing practices.

The first necessary revision to section 117 would be in regards to the current requirement that a copyrighted program be deleted from all archives “in the event that continued possession of the computer program should cease to be rightful.” When CONTU wrote this portion of software copyright law, their concern was two-fold:

  1. CONTU wanted to ensure that an owner be able to use and protect their software from damage or loss without fear of breaking copyright, and

  2. when an owner ceases to rightfully possess a program, he or she cannot simply extract and use a copy of the program from a previously made archive in order to avoid violating copyright law.

While CONTU’s purpose for this requirement is sound, it does not match the current reality of computer archiving. Most archived copies made from computer systems involve copying a series of folders or even drives into one compressed file rather than making copies one program at a time. In order to remove a program that is no longer rightfully owned from a collection of archives, one would either need to individually extract, modify, and compress each archive containing the program, or destroy all infringing archives completely if they are stored on read-only material (such as a CD or DVD). This makes it difficult, if not completely impractical for the owner of a system to fully comply with current copyright law. In order to address this problem, I suggest the following changes*:

(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, any copy of the program made from an archive must be destroyed immediately without first being used or recopied.

This revision results in three changes to section 117 that maintains the spirit of the old law, while better complying with modern computing practices. First, this revision addresses the aforementioned problem of destroying copies of programs in archives by removing the unreasonable requirement completely. Second, it recognizes that when an archive is used to restore lost or damaged data, often either all missing files and programs in the archive are restored, or the entire contents of the archive are copied back onto the system. Since this process is necessary to restore lost or damaged data and often occurs automatically, it may inadvertently result in the copying of a program that is no longer rightfully owned onto a system, even though no copyright violation is intended. In order to both protect a person from an accidental violation and ensure archives cannot be used to subvert the aforementioned purpose of this subsection, the third change states that he or she is not violating section 117 if the copy is immediately destroyed before using or recopying it.

These revisions do not violate the purpose of software copyright since section 101 defines a computer program as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”** Since an archived copy of a program that is not rightfully owned is unable to be used until it has been extracted and copied onto a computer, its existence within the archive should not violate copyright law. Instead, the violation should occur when that program is extracted from the archive with the intent to use it. Thus the aforementioned changes to this subsection will cause section 117 to better reflect the realities of computer archiving, while ensuring that these archived copies cannot be used to circumvent software copyright.

The second part of section 117 that needs to be revised is the use of the term “owner” in this section. During the case MAI Systems Corp. v. Peak Computer, the Ninth Circuit Court of Appeals declared that licensees of a computer program “do not qualify as ‘owners’,” and are therefore “not eligible for protection under section 117.” Thus when congress changed the wording of section 117 to read “owner” in the place of “rightful possessor,” it inadvertently created a loophole where licensees of software are not guaranteed the same rights to run and archive their software. While such a case may be unlikely, the current wording of section 117 would allow the distributor of a license to claim a user is infringing copyright simply by running or archiving their licensed software. Since the majority of modern-day software is distributed under a license agreement, most software users currently receive little or no protection from such unreasonable claims.

The reason congress chose to use the term “owner” rather than “rightful possessor” as originally intended by CONTU is unclear, although some speculate that it was to prevent people from borrowing or renting software and leaving a copy on their system after returning it. Such a concern has been more recently addressed when congress passed the Computer Software Rental Amendments Act into law in 1990, which limited the “first sale” provision of section 109 in relation to software rentals. Because of this clarifying legislation, using the word “owner” in an attempt to prevent copyright circumvention through software rentals is no longer necessary.

Because the term “owner” does not contribute any additional protection to software licensees, nor does it prevent additional copyright infringement, the original term “rightful possessor” should replace the term “owner.” By using the term “rightful possessor,” licensees would be afforded the same rights of using and archiving their software as owners currently receive. In addition to granting licensees the same rights with respect to software use that owners enjoy, this new wording would not prevent restrictions regarding the distribution and use of software from being imposed through a license agreement. Since the distributor of a licensed software program generally intends for it to be used by the licensee anyway, this change of terminology will not result in any unreasonable limitations to what a license can contain.

By removing the requirement to destroy all archived copies of a program and shifting focus to deleting unauthorized copies after restoring an archive, the language of section 117 will better reflect the realities of modern archival methods. Furthermore, the former issues with using the term “owner” in conjunction with the licensing practices of most software distributors would be resolved with the re-adoption of the term “rightful possessor.” These two simple changes to section 117 will ensure that software copyright law will better reflect the realities of modern computer archiving and software use, while respecting the need for software distributors to impose additional restrictions via licensing.

*Original wording of section 117 is in black, new wording is in blue, words that have been removed have a line through them.

**Emphasis added.

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