When is a Copy NOT a Copy??
October 2000

"That depends on what the meaning of theword 'is' is." - President Bill Clinton

"I don't know what you mean by the word 'ask.'" - CEO Bill Gates

I don't know what they mean by the word "copy." Do they mean a *verb*, 'to copy,' as in the phrase "I refuse to let you *copy* this program?" Or do you mean a *noun*, 'a copy,' as in the phrase "I refuse to give you a *copy* of this program?"

Or maybe something else?

When copyright was first invented hundreds of years ago, the question of "what is a copy" was pretty simple. If I made a duplicate physical object with the same characteristics as the original, that was a copy. Was it illegal to do that? No. What was illegal was to do so for personal profit or financial gain. I could make a copy of something to learn about it; I could make a copy of something to write about it; I could make a copy for my own personal protection in case of loss (a backup copy). These permissions came under the general term "fair use," and were supposedly protected by the U.S. judicial codes. In other words, the right to copy something that is otherwise copyright-protected had certain legally-guaranteed exceptions.

And whether those exceptions were applicable or not was pretty straightforward. Caught selling copies of "Gone With the Wind"? If you were not paying the due royalties to the copyright owner(s), your bookselling career was up in smoke. Selling music cassettes out of the back of a '73 VW bus? Better call a lawyer. A clever exception appeared to be the case of a person selling fake Van Gogh's. After all, as long as everybody knew it was a fake, there was no crime -- unless it was a painting that had an official copyright owner.

Well, digital data formats changed all of that apparent simplicity. For example, every computer comes built-in with the means to make copies of data and programs. The copying mechanism does not care whether the copy is legal, illegal or undetermined; it just lets you copy(verb) or make a copy(noun). Since a copy may be sent via e-mail, it is possible that a copying event occurred, yet no visible object exists as proof of that event. A digital data product can exist in two places at once, or a hundred places, or a million, or even an infinite number of places, at essentially zero cost. (We will never run out of electrons, will we?) And each of these copies(noun) was produced by an act of copying (verb)... or was it??

Let's look at the example of a person who owns a printed copy of "Gone With the Wind." Miss Jane Reader has her own paid-for, legal copy of the book. One day while reading, she accidentally spills tea on the corner of page 133. Despite wiping it away quickly, there is a small stain on the book. Should she --

a. throw the book away and buy another one

b. live with it

c. make a Xerox copy of a friend's unstained page 133, and insert it into her book?

Furthermore, is she legally "safe" to do all of the above? When is a copy not a copy??

You see, she paid for the right to own a copy of the book. If the book suffers damage, does she not have the right to perform a repair upon property for which she is the legal owner or licensee? Why, even apartment renters have the right to perform minor repairs upon property that they do not own, but are merely occupying. Should legal users of printed matter not have similar rights? After all, book owners were never granted copyright for the purpose of enriching themselves due to the unreliable physical nature of the medium that carries their words and thoughts... only the words and thoughts are protected by copyright. If a person buys a book, is there not an implied guarantee that the book will not dissolve at room temperature, that it will not disappear if someone spills a drop of tea on a page?

What would we think about a book publisher who intentionally designed their books to rot in just a few months, requiring people to buy new copies every few months in order to keep valid, useful copies of what they had already paid for? Would we not support the rights of readers to protect the media and take reasonable steps to prevent unnecessary repurchases of their books and other printed matter? Wouldn't any copying under this situation be rightly viewed as repairs, not as copyright violations?

Then we come to the example of software. Suppose Jane User is sitting at her PC, and her *&%^*^% Windows crashes again. Should she be charged for the "right" to reload the operating system again, perhaps three or four times, before it finally "takes" and she can resume her computing activities? Are these acts of copying legal repairs, or illegal copyright violations?

I say that such copying (verb) is legal, because it does NOT produce a new copy(noun). Any copying process, which merely reinstalls software, is just a legal, protected repair. It is NOT made for personal profit or gain, or to avoid paying for copies of software. Having paid for a copy once, Miss User ought not to have to pay over and over for each copying(verb) just to get one copy(noun) that works. The copying process is also the repair process, in this case. The copyright owner ought only to have control over the total number of his or her works in existence, NOT whether a person had to perform a repair process to keep their own copy in existence.

So why, then, is Microsoft getting away with charging companies, particularly small and medium-sized businesses, for the right to repair or reconfigure their own software? Microsoft wants to charge these companies to use a "master" CD to reload Windows in custom configurations. But having licensed Windows at the time of purchase of their PCs, companies that use these PCs have the legal and natural right, in my opinion, to erase, reformat, reinstall, reconfigure and otherwise recreate the software they have licensed, on a 1-to-1 basis. In doing so, they are not getting more than what they paid for, because they have the same number of licenses at the end of the process as at the beginning. They are not selling pirated products; they are merely performing the necessary repairs and adjustments needed to keep their software products valid and useful.

Microsoft's view, however, is quite different. Imagine having to buy a new toaster every time your old toaster goes in for repairs. Yes, you must pay for the labor to repair the toaster, but you must also pay the "license fee" to create a "copy" of the original toaster. Or if you take your car to the shop and have transmission work done.... What if you had to pay the automobile manufacturer a "copyright fee" because the repair work resulted in a "new copy" of your original car? Notice that in all three cases -- the software, the toaster, and the car -- you end up with the same number of products as you started with. You are not getting "something for nothing." You are not creating new copies(noun) out of thin air. But Microsoft believes that every act of copying(verb) should be paid for, not merely every resulting copy(noun).

Overwriting a copy of Windows with the same CD -- or even a copy borrowed from a friend -- is something Microsoft would love dearly to collect a copyright fee for. Yet Microsoft products are so decrepit and unreliable, it is almost guaranteed that reinstallations will be necessary; if not to preserve the product, then certainly to restore its original performance by producing a clean Registry and an untangled file structure. Should Microsoft's waiver of warranty in its shrinkwrap license or its online license allow it the right to charge you for the "right" to repair what you have paid for already? I say NO. A copy is not a copy, if it does not result in an additional copy. Copying is not copying, if it does not result in an additional copy. A copy that is not, is not. And nobody should have to "ask" Mr. Gates for permission to fix his defective products.

Most recent revision: October 9, 2000
Copyright © 2000, Tom Nadeau
All Rights Reserved.

E-MAIL: os2headquarters@mindspring.com