09 November 2005

Copyright: US Supreme Court declines to review Krause v Titleserve Inc.

I was released from jury service yesterday. Having caught up with some urgent business that just could not wait I can now begin to resume normal blogging. The most interesting news item that took my fancy is a report by Anne Broche of ZD Net that the US Supreme Court will not review the Second Circuit's decision in Krause v Titleserve Inc. and others.

In that case the Court of Appeals for the Second Circuit dismissed a computer programmer's claim against his former employers for infringement of copyright for circumventing a software lock. The case turned on the construction of s.117 (a) of the US Copyright act (17 U.S.C. § 117(a) which provides that notwithstanding the provisions of s.106 (which generally provides, inter alia, that copying of a protected work infringes copyright), it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.

Very briefly, the claimant complained that the defendant company had altered 8 programs he had written for that company over many years. The claimant had placed locks on the code and stipulated that the defendant could run but not alter the programs without his consent. The defendant's employees unscrambled the locks in order to fix bugs and to perform other "routine" functions. The question was whether they were entitled to do so under the s.117 (a) exception. The court found for the company at first instance and that decision was confirmed on appeal.

The Court of Appeals' judgment is an exhaustive analysis of that exception. Appeal does not lie to the federal Supreme Court as of right in most instances. It is in any cases more like a review by the Administrative Court than an appeal to the House of Lords. The decision not to hear the case does not necessarily close the avenue for further consideration of the issue of law for all time but it is likely that the Second Circuit's judgment will remain in force for some time.

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