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Copyright and Digital Files

Copyright and Digital Files

Yes, under certain conditions as provided by section 117 of the Copyright Act. Although the precise term used under section 117 is “archival” copy, not “backup” copy, these terms today are used interchangeably. This privilege extends only to computer programs and not to other types of works. Under section 117, you or someone you authorize may make a copy of an original computer program if the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.

You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films).

It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies.

No. The Copyright Act does not permit anyone to sell backup copies to third parties separately from the original copy of the software. If you lawfully own a computer program, you may sell or transfer that lawful copy together with a lawfully made backup copy of the software, but you may not sell the backup copy alone.

We have been made aware of websites that are offering to sell “backup” copies of software via download over the Internet or in a custom-burned CD-R format, under the guise that section 117 permits this. Section 117 does NOT permit the sale of backup copies. Again, section 117 does not allow you to sell backup copies to someone else except when such backup copies are sold together with the original lawfully owned copy. It does not allow anyone to solely distribute “backup” copies to the public. In addition to being a violation of the exclusive right of distribution, such activity is also likely to be a violation of the terms of the license to the software. In many cases these sites appear to be a front for distribution of illegal copies, which is copyright infringement. You should be wary of sites that offer to sell you a backup copy.

And if you do buy an illegal backup copy, you will be engaging in copyright infringement if you load that illegal copy onto your computer, i.e., the unauthorized reproduction of the infringing computer program into memory. Lesson: if you want a backup copy of a lawfully owned computer program, back it up yourself.

The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright. Procedures for registering the contents of a website may be found in Circular 66, Copyright Registration of Websites and Website Content.

Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assignation of domain names through accredited registers.

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.

Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.

Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many "authorized" services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.

For more information on this issue, see the Register of Copyrights' testimony before the Senate Judiciary Committee.