Sec. 117: The Right to Adapt into the Fourth Generation and the Source Code Generator's Dilemma


Marvin N. Benn & Richard J. Superfine


VOL. XII • Spring 1994 • NO. 4 (table of contents)

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Section 117, of The Copyright Act of 1976, which regulates the copying of a computer software program by an authorized or registered user, serves as an exception or defense to an allegation of software infringement. This exception is grounded in the concept that an individual who lawfully purchases a computer software program should have the right to copy that program to some extent. However, courts have not developed a uniform approach to analyzing Section 117. This paper offers a union of tests used individually by courts to resolve this problem of legal inconsistency.

The courts have developed a three-step approach in determining if there has been an infringement by copying a non-literal element of a copyrightable program or if Section 117 applies. The first step is to apply the abstract test. Under this analysis, the court examines the software code and articulates the function of the program.

The second step is to apply the filtration test, which requires the court to determine whether or not the inclusion was an idea and whether or not it is protectable. If the inclusion is incidental or required by external factors, then it becomes unprotectable. In addition, the court must decide whether the program element originated in the public domain, since it is generally accepted that ideas or elements within the public sphere are not protectable.

The final step in the analysis is to apply the substantial similarity test. This test requires the court to compare the alleged infringing program with the protected program and look for similarities. The key inquiry is whether the allegedly infringing program is a copy of any aspect of the protected program.

This test, however, merely serves as a guideline, since no court has directly addressed Section 117. A strict application of the statute leads to an inquiry as to what copies were made, of what kind and in what context. On the other hand, under a less stringent interpretation, the inquiry will examine the effect that the copying of the program has on the licensor. Either interpretation, however, is speculation and Section 117 cannot be used as a source of advice until the court addresses it.

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