The United States Copyright Act says: made under this title, or any person authorised by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy. However, the law qualifies its broad statement: …unless authorized by the owners of copyright in…a computer program (including any tape, disk, or other medium embodying such program)…[no] person in possession of a particular copy of a computer program…may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that…computer program…by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. And further deals with the issue of microcode: This subsection does not apply to a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product. If you buy a copyrighted book, you can resell it as you please. Similarly, when you buy Microsoft Corp’s Windows, the licence agreement states: You may not rent or lease the software, but you may transfer your rights under this Microsoft Licence Agreement on a permanent basis provided you transfer all copies of the software and all written materials, and the recipient agrees to the terms of this agreement. You can sell your personal computer with Windows on it. But you cannot sell an AS/400 with OS/400 on it, even though you paid IBM Corp for a permanent software licence, nor can you sell a 9021 with MVS. IBM (and every other vendor with a similar practice) has exploited a loophole in the law by retaining ownership of the systems software code and only renting it. Yet to use a computer, you must have an opera ting system. In effect, IBM has sold you the car but kept the keys. There is a direct economic impact of this practice: users get to buy the rapidly depreciating portion of the asset, computer hardware, while vendors retain the necessary component that retains its worth and, if software prices rise, actually increases in value. This practice is not merely exploitative, but for IBM, still governed by the 1956 anti-trust consent decree, it may in fact be illegal. Yet nobody is raising this issue as the courts blindly weigh IBM’s plea to vacate the decree. – by Hesh Wiener From Infoperspective International, June 1995 Copyright (C) 1995 Technology News Ltd.
