The facts are the same as those in Example 1, except that instead of selling disks, Corp A, the U.S. corporation, decides to make Program X available for a fee on a World Wide Web home page on the Internet.
P, the Country Z resident, in return for payment made to Corp A, downloads Program X via modem onto the hard drive of his computer. As part of the electronic communication, P signifies his assent to a license agreement with terms identical to those in Example 1, except that in this case P may make a back-up copy of the program onto a disk.
None of the copyright rights described in paragraph (c)(2) have passed to P. Although P did not buy a physical disk, paragraph (g)(2) provides that the means of transferring the program is irrelevant. P has therefore acquired a copyrighted article, and as in Example 1 P is properly treated as its owner, so under paragraph (f)(2) there has been a sale of a copyrighted article rather than the grant of a lease.
Under paragraph (g)(2), the means of transferring the program is irrelevant. A download is treated the same as a physical disk.
As with the shrink-wrap disk, no copyright rights pass, so P acquires only a copyrighted article.
P signifies assent to license terms identical to Example 1 as part of the electronic communication, with the added right to make one back-up copy.
Because P is the owner of the copyrighted article, under paragraph (f)(2) the transaction is a sale rather than a lease.
