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17 USC 109
Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

Executive summary:

This document contains one section of the U.S. Copyright Act (found in Title 17 of the United States Code). This page was last updated in October 2005. All of the sections of the Copyright Act are listed on the Index page.

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§109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a)

Notwithstanding the provisions of section 106(3) [17 USC 106(3)], the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A [17 USC 104A] that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e) [17 USC 104A(e)], may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on--

(1)

the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A) [17 USC 104A(d)(2)(A)], or

(2)

the date of the receipt of actual notice served under section 104A(d)(2)(B) [17 USC 104A(d)(2)(B)], whichever occurs first.

(b)

(1)

(A)
Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.
(B)
This subsection does not apply to--
(i)
a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or
(ii)
a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.
(C)
Nothing in this subsection affects any provision of chapter 9 of this title [17 USC § §901 et seq.].

(2)

(A)
Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
(B)
Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990 [enacted Dec. 1, 1990], and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copyrights considers necessary to carry out the purposes of this subsection.

(3)

Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, "antitrust laws" has the meaning given that term in the first section of the Clayton Act [15 USC 12] and includes section 5 of the Federal Trade Commission Act [15 USC 45] to the extent that section relates to unfair methods of competition.

(4)

Any person who distributes a phonorecord or a copy of a computer program (including any tape, disk, or other medium embodying such program) in violation of paragraph (1) is an infringer of copyright under section 501 of this title [17 USC 501] and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509 [17 USC § §502, 503, 504, 505, and 509]. Such violation shall not be a criminal offense under section 506 [17 USC 506] or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18.

(c)

Notwithstanding the provisions of section 106(5) [17 USC 106(5)], the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

(d)

The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.

(e)

[Caution: For termination of application of this subsection, see §804(c) of Act Dec. 1, 1990, P.L. 101-650, which appears as a note to this section.] Notwithstanding the provisions of sections 106(4) and 106(5) [17 USC § §106(4) and 106(5)], in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin-operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship.