United StatesCopyright Act, first sale and computer program copies, 17 U.S.C. §§ 109 and 117
In force since .
A copyright: the exclusive rights rule binding public and private bodies.
- Instrument type
- an act of a legislature
As of .
What it requires
- You may sell or otherwise dispose of the possession of a particular copy or phonorecord you own that was lawfully made under title 17 without the copyright owner's authority; this does not extend, unless the copyright owner authorizes it, to a person who acquired possession from the copyright owner by rental, lease, loan or otherwise without acquiring ownership of it (s. 109(a) and (d)).
- Do not dispose of the possession of a copy of a computer program by rental, lease or lending, or by any act in the nature of rental, lease or lending, for direct or indirect commercial advantage unless the owner of copyright in the program authorizes it (s. 109(b)(1)(A)).
- That rental limit does not reach a program embodied in a machine or product that cannot be copied during its ordinary operation or use, a program in a limited purpose computer designed for playing video games, or lending for nonprofit purposes by a nonprofit library that affixes the prescribed copyright warning to each copy (s. 109(b)(1)(B) and (2)(A)).
- You may make another copy or adaptation of a computer program you own a copy of, without infringing, only as an essential step in using the program with a machine and for no other use, or for archival purposes only, and you must destroy all archival copies if continued possession of the program ceases to be rightful (s. 117(a)).
- Transfer exact copies made under section 117 only along with the copy they were made from and only as part of the transfer of all rights in the program, and transfer adaptations made under it only with the copyright owner's authorization (s. 117(b)).
- The owner or lessee of a machine may make a copy of a program solely by virtue of activating the machine that lawfully contains an authorized copy, for maintenance or repair of that machine only, if the copy is used in no other manner, is destroyed immediately after the maintenance or repair is completed, and any part of the program not necessary to activate the machine is not accessed or used other than to make the copy (s. 117(c)).
What this law does
Section 109(a) entitles the owner of a particular copy or phonorecord lawfully made under title 17, or any person authorized by that owner, to sell or otherwise dispose of the possession of that copy or phonorecord without the authority of the copyright owner. Section 109(d) withholds that privilege, unless the copyright owner authorizes it, from a person who has acquired possession of the copy from the copyright owner by rental, lease, loan, or otherwise without acquiring ownership of it.
Section 109(b)(1)(A) bars any person in possession of a particular copy of a computer program from disposing of its possession, for the purposes of direct or indirect commercial advantage, by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending, unless the owner of copyright in the program authorizes it.
Section 109(b)(1)(B) excludes a computer program embodied in a machine or product that cannot be copied during the ordinary operation or use of the machine or product, and a computer program embodied in or used in conjunction with a limited purpose computer designed for playing video games.
Section 109(b)(2)(A) provides that the limit does not apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each lent copy has affixed to its packaging a warning of copyright in accordance with requirements the Register of Copyrights prescribes by regulation.
Section 109(b)(4) makes a person who distributes a copy of a computer program in violation of paragraph (1) an infringer of copyright under section 501, subject to the remedies in sections 502 through 505, and provides that the violation is not a criminal offense under section 506. Section 117(a) makes it not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that program, provided one of two conditions is met.
The first condition is that the new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and is used in no other manner. The second condition is that the 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.
Under section 117(b), exact copies prepared under the section may be leased, sold, or otherwise transferred, along with the copy from which they were prepared, only as part of the lease, sale, or other transfer of all rights in the program, and adaptations so prepared may be transferred only with the authorization of the copyright owner.
Section 117(c) makes it not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program, made solely by virtue of the activation of a machine that lawfully contains an authorized copy, for purposes only of maintenance or repair of that machine.
That copy must be used in no other manner and destroyed immediately after the maintenance or repair is completed, and any part of the program not necessary for the machine to be activated must not be accessed or used other than to make the copy. Paragraph (1) of section 109(b), which covers computer programs, was added in 1990. Section 117 was substituted in its present form in 1980. Subsections (c) and (d) of section 117 were added in 1998.
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