Advanced Copyright Law on the Internet

7. Copying in the Course of Computer Maintenance or Repair

Title 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 authorize
the making of a copy of a computer program if such copy is made solely by virtue of the
activation of a machine that lawfully contains an authorized copy of the program, for purposes
only of maintenance or repair of that machine, provided the copy is used in no other manner and
is destroyed immediately after the maintenance or repair is completed, and, with respect to any
computer program or portion thereof that is not necessary for that machine to be activated, such
is not accessed or used other than to make the new copy by virtue of the activation of the
machine.

This amendment to the copyright statute was deemed necessary by its sponsors in view of
judicial decisions such as MAI Systems Corp. v. Peak Computer,^1459 discussed above, and Triad
Sys. v. Southeastern Express Co.,^1460 which held that copying portions of a computer program to
memory in the course of turning on and running the machine constitutes a “reproduction” under
Section 106 of the copyright statute. Under these decisions, a service technician who is not the
owner or licensee of the system software commits copyright infringement by even booting up the
machine for maintenance or repair. The revisions to Section 117 made by the DMCA change
this result. In Telecomm Technical Services Inc. v. Siemens Rolm Communications,^1461 the
court ruled that this provision is to be applied retroactively.

The scope of the computer maintenance and repair right was construed very broadly in
the 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 DMCA

The DMCA contains the following other miscellaneous provisions:

(a) Evaluation of Impact of Copyright Law on Electronic Commerce

Section 104 of the DMCA requires the Register of Copyrights and the Assistant Secretary
for Communications and Information of the Commerce Department to study and report to
Congress within two years of enactment of the DMCA with respect to the DMCA’s impact on

Both S. 1146 and H.R. 3048 would have afforded a broader expansion of the exemptions in Section 110(2) of

the copyright statute for certain performances or displays of copyrighted works for instructional activities

performed by government or nonprofit educational institutions. The bills would have extended this exemption

to distributions of a work, in addition to performances and displays, to cover the distribution of a work over a

computer network. The bills would also have expanded the exemption from nondramatic literary or musical

works to all works, and extended the exemption to apply to students officially enrolled in the course, not only

courses held in a classroom.

(^1459) 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 672 (1994).
(^1460) 64 F.3d 1330 (9th Cir. 1995), cert. denied, 116 S. Ct. 1015 (1996).
(^1461) No. 1:95-CV-649-WBH (N.D. Ga. July 6, 1999).