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Regulating the CloudPolicy for Computing Infrastructure$
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Christopher S. Yoo and Jean-Francois Blanchette

Print publication date: 2015

Print ISBN-13: 9780262029407

Published to MIT Press Scholarship Online: May 2016

DOI: 10.7551/mitpress/9780262029407.001.0001

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Software Copyright in the Cloud1

Software Copyright in the Cloud1

(p.215) 8 Software Copyright in the Cloud1
Regulating the Cloud

Lothar Determann

David Nimmer

The MIT Press

Clouds are on the horizon for software copyrights. The open source movement has been active to turn copyright into “copyleft”. Courts around the world are reshaping the first sale doctrine. Software manufacturers flee from distribution to service models, into the Cloud. A perfect storm for software copyrights is brewing. The Cloud promises to enable software publishers to place their code outside the framework of copyright exhaustion under the first sale doctrine and the “distribution trigger” in open source code license terms. Users' inability, in the Cloud context, to directly access the underlying software threatens to exert various side effects, notably affecting software interoperability. New kids on the block lose the ability to reverse-engineer hosted software. Established platform providers gain the ability to prevent interoperability, based on laws prohibiting interference with computers and technical protection measures. These developments risk upsetting the delicate balance between exclusive rights for copyright owners and access rights for the public, a balance that courts and legislatures have carefully established over the years, in order to foster creativity and innovation. With unprecedented pressure on traditional distribution models, how will copyright law cope? This Chapter illuminates the immediate path ahead, presents possible answers, and asks more questions.

Keywords:   Software copyright, intellectual property, cloud computing, telecommunications regulation

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