Fair Use of Copyrighted Software

This article discusses how the functional aspects of software should be accounted for in applying copyright's fair use doctrine. Copyright provides an incentive for authors to produce creative works, by giving them an exclusive right to make and distribute copies of their work. The fair use doctrine permits others to make copies where strict enforcement of the exclusive right would be counter-productive. Fair use often permits use of copyrighted material where the author suffers no loss, or where the author might deny permission for reasons counter to copyright's goals of fostering creativity and innovation. Parts II and III apply this analysis to the fair use of copyrighted software. Software differs from other copyrighted works because it is generally copied during use. To use a computer program, it often must be copied from the secondary storage of the computer to RAM. Because courts have deemed this to constitute making a copy for the purposes of the copyright statute, a software copyright holder potentially has more differentiated control over her work than an author that produces a book or a song. The fair use balance may be adjusted to ensure that the copyright holder's rights over the expressive aspects of her work do not unduly extend to the noncopyrightable functional aspects. The fair use doctrine has played a key role in recent Supreme Court copyright decisions and is likely to be central in adapting copyright law to new technologies and modes of authorship. The growing popularity of the Internet, essentially a huge device to transmit copies, is raising many new questions of fair use. This article seeks to develop a less mechanical approach, in order to ensure that rigid extension of copyright does not distort the incentives for innovation