Alan Mackenzie wrote: [... 17 USC 117 ...]
> No. Modifying an existing program is legal only for the specific > purpose mentioned, namely to get the program to run. If the adaptation > changed the program's functionality, it would not be an "essential step > in the utilization ....". http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf ------ II. [C]reated as an essential step in the utilization of the computer program in conjunction 9 with a machine 10 The next statutory factor Titleserv must satisfy addresses whether Titleservs 11 modification of the programs was an essential step in the utilization of the computer program[s] 12 in conjunction with a machine. The district court and the magistrate judge both relied heavily 13 on our decision in Aymes v. Bonelli, 47 F.3d 23 (2d Cir. 1995) (Aymes II) in finding that 14 Titleservs modifications qualified. Aymes II involved programs designed to assist the inventory, 15 record-keeping, and sales functions of a chain of retail stores selling swimming pools and pool 16 supplies. Id. at 24. The defendants, which were the users of the programs, modified the 17 programs to keep them up-to-date and to ensure their compatibility with the defendants 18 successive generations of computer systems. Id. at 26. The plaintiff, who owned the copyright 19 in the programs, alleged that the defendants unauthorized modifications infringed his copyright. 1 We concluded that the modifications were essential to the defendants utilization of the programs 2 within the meaning of § 117(a)(1) because the adaptations were essential to allow use of the 3 program[s] for the very purpose for which [they were] purchased. Id. at 27. 4 The modifications allegedly made by Titleserv to its copy of the programs fall into four 5 main categories: (1) correcting programming errors or bugs, which interfered with the proper 6 functioning of the programs; (2) changing the source code to add new clients, insert changed 7 client addresses, and perform other routine tasks necessary to keep the programs up-to-date and 8 to maintain their usefulness to Titleserv; (3) incorporating the programs into the Windows-based 9 system Titleserv designed and implemented between 1997 and 1998; and (4) adding capabilities, 10 such as the ability to print checks, and, to a limited degree, allowing customers direct access to 11 their records, which made Titleservs copy of the programs more responsive to the needs of 12 Titleservs business. 13 As for the first two types of modifications, a straightforward application of Aymes II to 14 the undisputed facts establishes that these modifications constituted essential step[s] in the 15 utilization of the computer program[s] in conjunction with a machine. The fixing of bugs was 16 done so that the programs would continue to function. Without such fixing, the programs would 17 not function properly. It cannot seriously be disputed that such fixing is essential. Titleservs 18 modification of the source code to reflect such business changes as the addition of new customers 19 and changed customer addresses also comes within the scope of the modifications approved in 20 Aymes II, which were designed to keep the software in step with changes in the defendants 21 business. 22 As for the third type of modifications, involving adaptation of the programs so that they 1 would function on Titleservs new Windows-based system, we note in passing that Titleserv 2 vigorously denies Krauses allegation that it copied his programs into the new system. In 3 adjudicating Titleservs motion for summary judgment, however, we must utilize the version of 4 the evidence most favorable to Krause, drawing all permissible inferences in his favor. Cifarelli 5 v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). Utilizing that standard to assume that Titleserv 6 did incorporate copyrighted matter from Krauses programs into its new system, we nonetheless 7 conclude, following Aymes II, that such adaptation qualifies under § 117(a)(1) as an essential 8 step. In Aymes II, we reached the same conclusion as to the defendants adaptation of their copy 9 of the software so that it would continue to function on the defendants new computer system. 10 47 F.3d at 26-27. 11 The only category of Titleservs modifications requiring additional analysis is the fourth 12 category: the addition of new features, such as check printing and providing for direct client 13 access. Such changes were not strictly necessary to keep the programs functioning, but were 14 designed to improve their functionality in serving the business for which they were created. 15 Focusing on § 117(a)(1)s use of the word essential, Krause argues that an adaptation or 16 change does not come within the protection of § 117(a)(1) unless it is truly necessary to the 17 functioning of the system. He thus argues that, while the fixing of bugs may be permitted 18 because such repairs are essential to keep the program operating, adaptations that improve the 19 functionality of the system but are not required to keep it operational cannot qualify. 20 We already implicitly rejected Krauses argument in Aymes II. In that case, some of the 21 program changes approved by our ruling as falling within the protection of § 117(a)(1) had 22 nothing to do with enabling the programs to continue functioning; they rather involved adapting 1 the programs to changes in the defendants business. For example, the Aymes II defendants 2 changed product lines, from gas barbecues to ceiling fans to swimming pool supplies, and the 3 alterations of the programs were designed to maintain the utility of the programs in connection 4 with these changes in product lines. Joint App. at I2-3, Aymes II, 47 F.3d 23. Unless we were to 5 retreat from that ruling, we would be compelled to reject the narrow reading of § 117(a)(1) which 6 Krause urges on us. 7 We see no reason to retreat from Aymes II. The statute is ambiguous on the point in 8 question. The word essential is defined as necessary, indispensable, or unavoidable. See 9 Websters Third New International Dictionary 777 (1976). In use, its meaning varies 10 considerably from one context to another. For example, one might say it is essential when 11 driving a car to stay alert. This does not mean it is impossible to drive a car without being alert, 12 but rather stresses the importance of staying alert. Similarly, one might ask an essential 13 question. This does not mean the question had to be asked, but rather that it goes to the heart of 14 the matter. 15 Essential is often used as a synonym of necessary, as indicated by its dictionary 16 definition. Particularly as used in the law, the word necessary is ambiguous. According to 17 Blacks Law Dictionary, the word is susceptible of various meanings. It may import absolute 18 physical necessity or inevitabilty, or it may import that which is only convenient, useful, 19 appropriate, suitable, proper, or conducive to the end sought. Blacks Law Dictionary 928 (5th 20 ed. 1979); Blacks Law Dictionary 1181 (rev. 4th ed. 1968).5 See also MCulloch v. Maryland, 1 17 U.S. (4 Wheat.) 316, 388 (1819) (The word necessary, standing by itself, has no inflexible 2 meaning; it is used in a sense more or less strict, according to the subject.). The same ambiguity 3 inheres in the word essential, which in some of its meanings is effectively synonymous with 4 necessary. We reject Krauses contention that the word essential can apply only to a 5 modification without which the program could not function. 6 Moreover, Krause focuses too narrowly on the word essential. The meaning of the 7 phrase an essential step in the utilization of the computer program is equally dependent on the 8 word utilization. The dictionary defines utilize as to make useful, turn to profitable 9 account or use, make use of, and convert to use. Websters Third New International 10 Dictionary at 2525. This definition sheds little light on what the word utilization means in the 11 context of § 117(a)(1). Utilization of a computer program might refer exclusively to booting 12 and running the program, in which case only limited modification, such as fixing bugs to prevent 13 the program from crashing, might qualify as an essential step in booting or running the 14 program. On the other hand, utilization might refer more broadly to mak[ing] [the program] 15 useful to the owner of the copy, in which case more extensive modification that involved adding 16 new program features to enhance functionality might qualify as an essential step in making the 17 program useful. Accordingly, even if the word essential is given a narrow meaning, 18 encompassing only absolute necessity, § 117(a)(1) remains ambiguous because the statute does 19 not clearly indicate for what end modifications must be absolutely necessary. 20 In arguing that § 117(a)(1) authorizes only adaptations absolutely necessary to make a 21 program boot or run, Krause contends that his interpretation is required to avoid rendering the 22 phrase in conjunction with a machine superfluous. His argument goes as follows: Because a 1 computer program inevitably functions on a machine, the statutory words in conjunction with a 2 machine would be tautological and unnecessary if given their ordinary meaning. On the 3 assumption that Congress intends every portion of a statute to have meaning, the phrase in 4 conjunction with a machine must therefore place an additional limitation on the scope of § 5 117(a)(1). That limitation restricts the meaning of essential step to those modifications 6 absolutely necessary to make a program boot and run. 7 Krause is mistaken in suggesting that the words in conjunction with a machine are 8 tautological if given their plain meaning. Those words can serve to broaden § 117(a)(1) by 9 making clear that the utilization of a program does not need to be in conjunction with what we 10 conventionally call a computer, but can be in conjunction with a range of machines driven in part 11 by computer programs, such as automobiles, airplanes, and air conditioners. Furthermore, even 12 if the statute used the phrase in conjunction with a computer, we would see no reason to 13 ascribe specialized meaning to the phrase simply for the sake of avoiding slight repetition in the 14 statutory text. Some repetition can help clarify the meaning of a statute, and we are reluctant to 15 endorse an awkward reading of its words for no better reason than to satisfy the canon of 16 construction that cautions against adopt[ing] a construction making another statutory provision 17 superfluous. Hohn v. United States, 524 U.S. 236, 249 (1998). As we have noted previously, 18 [g]eneral principles of statutory construction are notoriously unreliable and should not take 19 precedence over more convincing reasons. Hakala v. Deutsche Bank AG, 343 F.3d 111, 116 (2d 20 Cir. 2003). The Supreme Court has recognized in particular that the preference for avoiding 21 surplusage constructions is not absolute. Lamie v. United States Tr., 540 U.S. 526, 536 (2004). 22 We therefore reject Krauses argument and conclude that the phrase in conjunction with a 1 machine does not cure the ambiguity of the statutory text. 2 Given the ambiguity of the text, we turn to the legislative history of § 117(a) for 3 guidance. As discussed above, Congress enacted the language proposed in the CONTU Report 4 largely without alteration. The House Report simply states that § 117(a) embodies the 5 recommendation of CONTU. H.R. Rep. No. 96-1307(I), at 23 (1980), reprinted in 1980 6 U.S.C.C.A.N. 6460, 6482. We therefore look to the CONTU Report for indications of 7 Congressional intent. See Aymes II, 47 F.3d at 26-27; see also Vault Corp. v. Quaid Software 8 Ltd., 847 F.2d 255, 260-61 (5th Cir. 1988); Foresight Res. Corp. v. Pfortmiller, 719 F. Supp. 9 1006, 1009 (D. Kan. 1989). 10 Krause asserts that the CONTU Report supports his interpretation of § 117(a)(1). He 11 contends the Commission was primarily concerned with compatibility as between program and 12 computer, which was of particular concern at the time the Report was issued in 1978, during the 13 early stages of personal computer development. His argument relies heavily on one sentence in 14 the report, which says: Because of a lack of complete standardization among programming 15 languages and hardware in the computer industry, one who rightfully acquires a copy of a 16 program frequently cannot use it without adapting it to that limited extent which will allow its 17 use in the possessors computer. CONTU Report at 13. 18 Other passages of the report, however, describe the right to modify programs in a manner 19 that goes far beyond concern with compatibility and strongly suggests that the writers of the 20 CONTU Report envisioned a loose concept of necessity that would encompass our very 21 issuethe addition of features so that a program better serves the needs of the customer for 22 which it was created. The report states: 1 Thus, a right to make those changes necessary to enable the use for which it was 2 both sold and purchased should be provided. The conversion of a program from 3 one higher-level language to another to facilitate use would fall within this right, 4 as would the right to add features to the program that were not present at the time 5 of rightful acquisition. 6 Id. (emphasis added). Without question, the CONTU Report, in the italicized text, specifically 7 contemplates protection for modifications adding features, rather than merely securing continued 8 functioning of what was originally created. The CONTU Report thus persuasively rebuts 9 Krauses narrow reading of § 117(a)(1), which would authorize only changes needed to permit 10 the program to function. 11 The question remains whether the changes Titleserv made to its copies of Krauses 12 programs come within § 117(a)(1)s broader concept of an essential step in the utilization of the 13 computer program in conjunction with a machine. We can see no reason why the modest 14 alterations to Titleservs copies of the programs should not qualify. We need not address 15 whether other types of improvements might be too radical, or might fail to qualify because they 16 somehow harm the interests of the copyright owner. The sentence of the CONTU Report after 17 the one speaking of the right to add features states that the rights granted by § 117(a) could only 18 be exercised so long as they did not harm the interests of the copyright proprietor. CONTU 19 Report at 13. A different scenario would be presented if Titleservs alteration somehow 20 interfered with Krauses access to, or ability to exploit, the copyrighted work that he authored, or 21 if the altered copy of Krauses work were to be marketed by the owner of the copy. But on our 22 facts, we see no harm whatsoever to Krauses enjoyment of his copyright. The changes made by 23 Titleserv were made only to its copies of Krauses programs. Krause enjoyed no less opportunity 24 after Titleservs changes, than before, to use, market, or otherwise reap the fruits of the 1 copyrighted programs he created. 2 Taking into account the ambiguity of the concepts of essential and utilization, and 3 construing § 117(a) in light of the CONTU Report which Congress followed, we conclude that 4 Titleservs changes to its copy of Krauses programs were essential step[s] in the utilization of 5 the computer program[s] in conjunction with a machine within the meaning of § 117(a)(1). ------ You are on the losing side (as always), Alan. regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
