IP Tech Knowledgy

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Make Archival Copies of Software; The Law Usually Allows It

It is not an infringement of a copyright for the “owner of a copy of a computer program” to make a copy of the software for the purpose of having an archive to use if the original crashes. The Copyright Act provides this right, but software users should take additional steps to preserve this right to make a backup copy. The core issue is that courts have sometimes misinterpreted whether a software licensee is considered an “owner” of a copy. Since courts do not consistently equate a “possessor” of a copy with an “owner,” it is not certain whether a licensee who pays for the software and has a copy on its system is always deemed the “owner of a copy.” A licensee is better protected if the license allows for the backup and describes how the backup can be used. And the licensee should be sure to make the backup so as not to be stuck if its software system crashes. As technology evolves more toward Software as a Service and a licensee does not possess a copy of the software, this statute becomes less relevant. However, using software on the cloud does present a risk of allowing the licensor to turn off access, or hampers the ability to have access to needed software if servers are inoperable. Even a Software as a Service agreement should contemplate a contingency to address hardware glitches.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com