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INDEPENDENT MAINTAINERS OF HIGH TECHNOLOGY EQUIPMENT WILL FIGHT COPYRIGHT DECISION

 SAN FRANCISCO, April 11 /PRNewswire/ -- Last week a Federal Appeals Court in California issued an unprecedented decision holding that, if a maintainer of computer equipment turns on a computer without having a license to the operating system software which runs the computer, that maintainer infringes the manufacturer's copyright in that operating system. Because the decision, MAI Systems Corporation v. Peak Computer, Inc. et. al., would, if upheld, destroy the multi-billion dollar independent service industry, the largest association of independent maintainers of high technology equipment, Independent Service Network International, said today it will be opposing the decision, as ISNI successfully did with a similar decision last year. Claudia Betzner, the executive director of ISNI, which has approximately 200 maintainers of computers and medical technology as its members representing over two billion dollars of annual revenue, said that "ISNI was successful with its friend-of- the-court brief last year to the U.S. Supreme Court in the antitrust case of Kodak v. Image Technical Services. The MAI case is equally important, and we fully expect that it will be reversed."
 The Ninth Circuit Court of Appeals focused on the fact that a temporary copy of the operating system software appears in the computer's random access memory (RAM) when the machine is turned on for the purpose of being maintained. The copy disappears when the computer is turned off. The court held that such a copy is sufficiently fixed that the manufacturer which owns the copyright can claim infringement. Typically such software programs are licensed rather than sold to purchasers of computers.
 The court acknowledged that its decision was unprecedented. It did cite some authorities but also stated in the decision that "We recognize that these authorities are somewhat troubling since they do not specify that a copy is created regardless of whether the software is loaded into the RAM, the hard disk or the read only memory (ROM)." Copies in the hard disk or ROM are permanent, not temporary.
 The general counsel of ISNI, Ronald S. Katz, stated that "it is not surprising that the decision is unprecedented because it ignores the plain language of the copyright act, which provides for precisely such 'copying.' The decision also is silent about the abolition of independent service as an industry, which could apply to the service of many other products which contain software. Last year in the Kodak case before the U.S. Supreme Court, ISNI was not the only organization to file a friend-of-the-court brief. Because independent maintainers provide an economical alternative to service by the manufacturer, other briefs supporting the independents were filed by over thirty states, the purchasing agents of over one thousand public entities, one of Ralph Nader's organizations, and six of the largest insurance companies. I expect similar support regarding this case because it give manufacturers a monopoly over maintenance, which is exactly what the Supreme Court was trying to prevent in the Kodak case."
 Peak has fourteen days to ask the Appeals Court for a rehearing. Peak may request that the entire Ninth Circuit of over thirty judges rehear the case rather than just the three-judge panel which rendered the decision.
 -0- 4/11/93
 /CONTACT: Claudia Betzner, executive director of ISNI, 404-885-9908, or Ronald S. Katz, general counsel for ISNI, 415-986-1300/


CO: Independent Service Network International ST: California IN: CPR SU:

SB -- NYON3 -- 0427 04/12/93 01:32 EDT
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Publication:PR Newswire
Date:Apr 12, 1993
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