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CENTRAL POINT SOFTWARE, INC. v. GLOBAL SOFTWARE &

August 3, 1994

CENTRAL POINT SOFTWARE, INC., et al., Plaintiffs,
v.
GLOBAL SOFTWARE & ACCESSORIES, INC., Defendant.


WEXLER


The opinion of the court was delivered by: WEXLER

WEXLER, District Judge

 Plaintiffs Central Point Software, Inc. ("Central Point"), Computer Associates International, Inc. ("Computer Associates"), Datastorm Technologies, Inc. ("Datastorm") Quarterdeck Office Systems, Inc. ("Quarterdeck"), Software Publishing Corporation ("Software Publishing"), Symantec Corporation ("Symantec"), Wordstar International, Inc. ("Wordstar"), and Executive Systems, Inc. d/b/a XTree Company ("XTree") (collectively, "plaintiffs"), computer software manufacturers, bring this action against defendant Global Software & Accessories, Inc. ("Global") alleging copyright infringement for violations of the Computer Software Rental Amendments Act of 1990, which amended § 109 of the Copyright Act, 17 U.S.C. § 109 (b) (the "Act"). Plaintiffs seek injunctive relief and damages. *fn1" Presently before the Court is plaintiffs' motion for a preliminary injunction pursuant to § 502(a) of the Copyright Law, 17 U.S.C. § 502(a), and Rule 65 of the Federal Rules of Civil Procedure. For the reasons below, the motion is denied.

 I. BACKGROUND

 Defendant has been engaged in the business of selling and renting computer hardware, software and related accessories since at least November 1988. Defendant operates three stores, each of which is located in New York. The last of these three stores was first opened in July 1993.

 Plaintiffs allege that defendant infringed their copyrights by the rental of their copyrighted software in violation of the Act's rental prohibition. The Act provides, in relevant part:

 
Unless authorized by the . . . owner of copyright in a computer program (including any tape, disk or other medium embodying such program), . . . [no] 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 . . . 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.

 17 U.S.C. § 109(b)(1)(A). As for a person who violates the rental prohibition, the Act provides:

 
Any person who distributes . . . 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 and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509.

 Id. § 109(b)(4).

 The Act, however, does not apply to the disposition of a copy of a computer program acquired before December 1, 1990. In this respect, the Act provides that it

 
shall not affect the right of a person in possession of a particular copy of a computer program, who acquired such copy before the date of the enactment of this Act [December 1, 1990], to dispose of the possession of that copy on or after such date of enactment in any manner permitted by section 109 of title 17, United States Code, as in effect on the day before such enactment.

 Pub. L. 101-650, § 804(b). Thus, the Act does not prohibit rental of copies of computer programs acquired before December 1, 1990, only rental of those ...


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