Advanced Copyright Issues on the Internet - Fenwick & West LLP

and, if reproduced in digital format, it is not otherwise distributed in that format and is not madeavailable to the public in that format outside the premises of the library or archives.6. Distance EducationSection 403 of the DMCA requires that, within six months after enactment, the Registerof <strong>Copyright</strong>s submit to Congress recommendations on how to promote distance educationthrough digital technologies, including interactive digital networks, while maintaining anappropriate balance between the rights of copyright owners and the needs of users of copyrightedworks. The DMCA lists a number of factors that should be considered in making suchrecommendations. 10137. Copying in the Course of Computer Maintenance or RepairTitle III of the DMCA added a new subsection to Section 117 of the copyright statute,providing that it is not an infringement for an owner or lessee of a machine to make or authorizethe making of a copy of a computer program if such copy is made solely by virtue of theactivation of a machine that lawfully contains an authorized copy of the program, for purposesonly of maintenance or repair of that machine, provided the copy is used in no other manner andis destroyed immediately after the maintenance or repair is completed, and, with respect to anycomputer program or portion thereof that is not necessary for that machine to be activated, suchis not accessed or used other than to make the new copy by virtue of the activation of themachine.This amendment to the copyright statute was deemed necessary by its sponsors in view ofjudicial decisions such as MAI Systems Corp. v. Peak Computer, 1014 discussed above, and TriadSys. v. Southeastern Express Co., 1015 which held that copying portions of a computer program tomemory in the course of turning on and running the machine constitutes a “reproduction” under1013 The factors include: The need for an exemption from exclusive rights of copyright owners for distanceeducation through digital networks; the categories of works to be included under the exemption; the extent ofappropriate quantitative limitations on the portions of works that may be used under the exemption; the partieswho should be entitled to the benefits of the exemption; the parties who should be designated as eligiblerecipients of distance education materials under the exemption; whether and what types of technologicalmeasures can or should be employed as a safeguard against unauthorized access to and use or retention ofcopyrighted materials as a condition of eligibility for any exemption; and the extent to which the availability oflicenses for the use of copyrighted works in distance education through interactive digital networks should beconsidered in assessing eligibility for the exemption.Both S. 1146 and H.R. 3048 would have afforded a broader expansion of the exemptions in Section 110(2) ofthe copyright statute for certain performances or displays of copyrighted works for instructional activitiesperformed by government or nonprofit educational institutions. The bills would have extended this exemptionto distributions of a work, in addition to performances and displays, to cover the distribution of a work over acomputer network. The bills would also have expanded the exemption from nondramatic literary or musicalworks to all works, and extended the exemption to apply to students officially enrolled in the course, not onlycourses held in a classroom.1014 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).1015 64 F.3d 1330 (9th Cir. 1995), cert. denied, 116 S. Ct. 1015 (1996).- 229 -