Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT
TITLE III: COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Title III amends Section 117 of the Copyright Act to ensure that independent service organizations do not inadvertently become liable for copyright infringement merely because they have turned on a computer in order to service its hardware components.
Title III was proposed in response to the decision in MAI Systems Corp. v. Peak Computer, Inc.53 MAI involved the limitation on the exclusive rights in computer programs contained in 17 U.S.C. § 117, which allows the "owner" of a program to load the program into the machine’s random access memory, or "RAM." In MAI, an independent service organization (ISO) serviced a computer which used software licensed to, but not owned by, the customer. The court held that the ISO infringed the copyright in the program by loading the copyrighted software into the RAM of the customer’s computer, thereby making a "reproduction" of the copy under 17 U.S.C. § 106. The MAI court ruled that Section 117 only exempted "owners" of software and not "licensees." Title III amends Section 117 to effectively overrule MAI by allowing the owner or lessee of a machine to make or authorize the making of a copy of a computer program under certain conditions for the purpose of repair or maintenance of the computer hardware.
Specifically, the making of the copy is allowed (1) if the copy is made "solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine," (2) if the new copy is used for no other purpose and is destroyed upon completion of the maintenance or repair, and (3) if "any computer program ... that is not necessary for that machine to be activated ... is not accessed or used other than to make such new copy by virtue of the activation of the machine." Significantly, the exception applies only to RAM copies made during the course of hardware maintenance, not software maintenance.