Wednesday, September 06, 2006

You Might Want to Look it up Before You Go to Court

In an interesting little case at the 8th Circuit involving the intersection between 'computer program' and 'data' and the application of the Computer Software Rental Amendments Act of 1990, the court took pains to suggest that the lawyer arguing the case at District Court for the (alleged...) copyright holder did not even understand a fundamental concept in the world of copyright registration:

Indeed, the term source code is nowhere to be found in Action Tapes’ pleadings and motion papers, and at the summary judgment motion argument counsel did not know the meaning of that term.

Oops. I would not want to presume anything about whomever was arguing the case, since it may have been a last minute substitution. But, there was obviously a mishandling of the registration of the copyright (and, maybe I need to reconsider my rule-of-thumb that lawyers are rarely needed in actual registration practice for copyright). It clearly is a lesson for the rest of us -- These technicalities are important but oft-times relegated to the last minute if at all.

Although the case ended up turning on a technicality (failure to register the copyright prior to litigation), the court did offer some thoughts on the underlying theories suggesting that it would have likely decided the case against the copyright holder in any event. The case involved a company that made programs that controlled sewing machines making patterns. The program uses memory cards that contained the instructions for the pattern that was being sewed. A retailer made a habit of lending out memory cards to her customers (although unstated in the opinion, I presume that the computer program itself was not lent out, just the memory cards with the instructions).

The copyright holder sued, claiming that the lending out of the memory cards was an infringement based on the Rental Act's prohibition on lending out copies of 'computer programs' (a specific statutory exemption from the first sale doctrine). The defendant argued that the memory cards did not comprise a 'computer program,' and therefore were still subject to the plain old First Sale Doctrine rules (which allow one to lend, rent or otherwise dispose of a particular authorized copy of a work once it has first been sold under the authority of the copyright holder). The District Court agreed and granted summary judgment on that basis. The 8th Circuit did not reach the question since it noted that the registration used by the plaintiff was not properly done for a 'computer program,' which, among other things, requires that the source code for the program be filed with the registration (which had not been done) -- Thus, deciding the case on the ground that the plaintiff had no case because it "failed to prove it applied for registration of the computer program copyrights before commencing this infringement suit." The plaintiff tried to duck the problem by noting that it still held a valid copyright in the visual design, and again the court noted that even if that were true the exemption from the first sale doctrine only applies to computer programs and not to visual designs.

Although our group focuses on our 'cyberspace' commonality, many of us are frequently brought in for intellectual property concerns, and particularly where computer programs or the like are involved. Or, rather -- We should be brought in. Yet another reason to seek out attorneys who have the knowledge and background to know what Source Code might be...

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