cyckV4

Fixation (Copyright Meets Software, continued) 369
permanent injunction is upheld as it relates to this issue.
Questions:
1.) Should the question of whether a RAM copy of a computer program is sufficiently
“fixed” to constitute infringement depend on some linguistic analysis? A technical
analysis? One that considers the effect of the decision on the degree of control that the
owner of the software copyright could exercise in the aftermarket—for example, by
controlling maintenance and repair? What would Judge Boudin say about the approach
that the MAI court adopts?
2.) We have talked about implicit moral framing in intellectual property questions. What
facts does the court give early in its decision that suggested which way it was going to
rule? How would you describe the implicit narrative presented?
3.) You are the lawyer responsible for the appeal of this case. The judges are not
technically savvy. Your job is to come up with analogies to the world of copyright that
they are familiar with that either confirm or deny the court’s conclusion. In particular,
you should focus on their implicit definition of what it means to be fixed. (“To say that
this is fixed is like saying ___ is fixed. To say that this is not fixed is like saying ___ does
not count as fixation.”) You should also focus in your analogical quest on the
consequences of their ruling. (“This is like saying that ____ [traditional copyright holder]
can forbid ____. To say they cannot prohibit this activity would be like saying a ___
[traditional copyright holder] is unable to prevent someone from ____.”)
4.) How does this decision relate to the goals of the fixation requirement in the
Constitution?
5.) Read § 117 of the Copyright Act. This section was amended after the MAI decision
specifically to address the legality of computer repair. Does this solve the potential
problem created by MAI?
6.) How much software do you own? Search the web for the licenses covering some
piece of software on your computer, such as iTunes, or Microsoft Word (assuming that
you did not carefully read those terms when you clicked “I accept”). What does the
license say? Why is MAI relevant to this question?
Religious Technology Center v. Netcom
907 F.Supp. 1361 (N.D. Cal. 1995)
WHYTE, District Judge.
This case concerns an issue of first impression regarding intellectual property
rights in cyberspace. Specifically, this order addresses whether the operator of a
computer bulletin board service (“BBS”), and the large Internet access provider that
allows that BBS to reach the Internet, should be liable for copyright infringement
committed by a subscriber of the BBS.
Plaintiffs Religious Technology Center (“RTC”) and Bridge Publications, Inc.
(“BPI”) hold copyrights in the unpublished and published works of L. Ron Hubbard, the
late founder of the Church of Scientology (“the Church”). Defendant Dennis Erlich