Advanced Copyright Issues on the Internet - Fenwick & West LLP

Section 106 of the copyright statute. Under these decisions, a service technician who is not theowner or licensee of the system software commits copyright infringement by even booting up themachine for maintenance or repair. The revisions to Section 117 made by the DMCA changethis result. In Telecomm Technical Services Inc. v. Siemens Rolm Communications, 1016 thecourt ruled that this provision is to be applied retroactively.The scope of the computer maintenance and repair right was construed very broadly inthe case of Storage Technology Corporation v. Custom Hardware Engineering & Consulting,discussed in Section II.G.1(a)(14)(iv) above.8. Other Provisions of the DMCAThe DMCA contains the following other miscellaneous provisions:(a) Evaluation of Impact of <strong>Copyright</strong> Law on Electronic CommerceSection 104 of the DMCA requires the Register of <strong>Copyright</strong>s and the AssistantSecretary for Communications and Information of the Commerce Department to study and reportto Congress within two years of enactment of the DMCA with respect to the DMCA’s impact on“the development of electronic commerce and associated technology,” and “the relationshipbetween existing and emergent technology” and Sections 109 and 117 of the copyright statute.The report required under Section 104 was issued in August of 2001 and is available online atwww.loc.gov/copyright/reports/studies/dmca/dmca_study.html.In a nutshell, the executive summary of the report concludes, “We are not persuaded thattitle I of the DMCA has had a significant effect on the operation of sections 109 and 117 of title17. The adverse effects that section 1201, for example, is alleged to have had on these sectionscannot accurately be ascribed to section 1201. The causal relationship between the problemsidentified and section 1201 are currently either minimal or easily attributable to other factorssuch as the increasing use of license terms. Accordingly, none of our legislativerecommendations are based on the effects of section 1201 on the operation of sections 109 and117.” 1017 The report does, however, recommend two legislative changes: (i) that the copyrightstatute be amended “to preclude any liability arising from the assertion of a copyright owner’sreproduction right with respect to temporary buffer copies that are incidental to a licensed digitaltransmission of a public performance of a sound recording and any underlying musical work” 1018and (ii) that Congress “either (1) amend section 109 to ensure that fair use copies are not subjectto the first sale doctrine or (2) create a new archival exemption that provides expressly that1016 No. 1:95-CV-649-WBH (N.D. Ga. July 6, 1999).1017 The quoted language is from the opening paragraph of Section III of the Executive Summary of the report. TheExecutive Summary may be found at www.loc.gov/copyright/reports/studies/dmca/dmca_executive.html.1018 Id. section III.b.2.c.- 230 -