Fair Use and Computer Software

Copyright law and its implications for software copying, usage, and re-purposing is a relatively recent phenomenon. Current fair-use interpretations of the application of copyright law to copyrighted and protected computer software applications are based primarily on the 9th circuit court of appeals cases Galoob toys v. Nintendo and Sega v. Accolade industries.

In the US, Computer programs are considered to be literary works (Apple v Franklin), 17 U.S.C. § 101. Copyright law protects not only the ‘literal elements’ of the computer, but extends also to the ‘non-literal’ elements such as code sequence, usage of control structures, and unique or inventive methods of applying normally utilitarian methods, objects, functions, variable or proprietary aspects of a given OS environment or computer language as an expression of the programmer’s original ideas.

Still, even given the above definition, there are considerable grounds for fair use of original software code, or copying of software programs. Currently, fair use would generally constitute that:

  • Modification of copyright software for personal use was fair as long as there was no distribution or profit involved.
  • Making copies in the course of reverse engineering is a fair use, when it is the only way to get access to the “ideas and functional elements” in the copyrighted code, and when “there is a legitimate reason for seeking such access”. This is illustrated in the 9th circuit court of appeals decision on the Galoob and Sega cases, and on the Lexmark v. Static Control Components, heard in the 6th circuit court of appeals. This very sticky widget of reverse engineering in these three cases is essentially founded on the principle that interoperability was lacking or missing, and that it was in the interests of the public to decompile copyrighted applications so that certain aspects could be accessed to allow interoperability and that a trivial (percentage of total code) was used included in the re-purposed code that extended the original programming.
  • Creating an ‘archival’ copy of a copyrighted software item is permissible, but only by following certain guidelines.

What is not permissible?

  • Generally, copying a [copyrighted] computer program other than what is mentioned above is not permissible.
  • Copying a program for educational use in a classroom is not permissible.
  • Copying, and distributing for any reason is not permissible.
  • Copying a program to use on another, unlicensed computer is not permissible.
  • Also, please note that many academic institutions err on the side of caution when it comes to copyright law and computer software, and often or usually have a variety of policies and documents governing what students, faculty and staff can and cannot do in regards to coprighted software

And of course, under the US Copyright laws, the library exception (section 108) “…allows them (libraries) to reproduce and distribute copyrighted works under certain specific conditions.” However, it should be noted that the library of Congress instituted a working group to investigate section 108, and create a report that makes recommendations that updates section 108 and the DMCA to meet the needs of the modern era. This report is forthcoming.


1. http://ogc.harvard.edu/pages/copyright-and-fair-use
2. http://crln.acrl.org/content/74/4/199.full
3. https://en.wikipedia.org/wiki/Software_copyright
4. https://wustl.edu/about/compliance-policies/computers-internet-policies/legal-ethical-software-use/
5. http://libguides.rockhurst.edu/c.php?g=312008&p=2084262
6. http://www.copyright.gov/docs/section108/
7. http://www.copyright.gov/docs/priorities.pdf
8. https://en.wikipedia.org/wiki/Sega_v._Accolade


2 thoughts on “Fair Use and Computer Software

  1. Pingback: Roundup from Day 1 of Fair Use Week 2016 | Fair Use/Fair Dealing Week

  2. Pingback: Roundup from Day 1 of Fair Use Week 2016 | ARL Policy Notes

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