¹ The Copyright Act, 1911 (Extension to Palestine) Order, 1924.

² Article 2a of the Ordinance, 1988, S.H 171. It should be noted that while the British law upon which the Act was based was replaced by an altogether new copyright law in 1956 and then again in 1988, the copyright protection for computer programs in England remained categorized, as in Israel, under the umbrella of “literary works.”

³ Article 2a of the Copyright Ordinance Ordinance, 1999, S.H. 44.

⁴ C.A. 2392/99, Ashraz Data Processing Ltd. v. Transbeton Ltd. and counter appeal, C.A. 2780/99, Transbeton Ltd. v. Ashraz Data Processing Ltd. C.A. 9516/00, Easisoft Ltd. v. Ashraz Data Processing Ltd., 57(5) P.D. 255 [hereinafter the Ashraz case]. The aforementioned three appeals and one counter appeal were joined together by the Supreme Court and the decision addressed in this note addresses all four proceedings brought. Please note that the terms “Appellant” and “Respondents” as mentioned throughout the note, refer to the sides in the C.A. 2392/99 appeal.

⁵ C.C. (T.A.) 3021/84, Apple Computer, Inc. v. New-Corn Technologies Ltd., P.M. 5747(1) 397.

⁶ Id., at 468.

⁷ C.C. (T.A.) 1311/85, Achituv v. Harpaz, P.M. 5479(3) 177, affirmed by the Supreme Court in C.A. 139/89, Harpaz v. Achituv, 44 P.D. (4) 16. It should be noted that this decision relied heavily on the 1986 Whelan v. Jaslow Dental Laboratory 797 F.2d 1222 precedent which was later overturned by Computer Associates International Inc. v. Altai Inc. 982 F.2d 693.

⁸ C.C. (T.A) 1787/87, Ampisal (Israel) Ltd. V. Japanland Corporation Ltd., (unpublished).

⁹ Legislative Memorandum of the Copyright Law 1999, Legislative Memorandum of the Copyright Law 2003. By law, the Justice Minister has the power to change these ranges, in agreement with the parliamentary committee responsible for legislation. Past attempts at initiating changes in such a way have all failed.

¹⁰ The 2003 bill suggests removing the lower boundary altogether and raising the upper boundary to 50,000 NIS. The 1999 bill suggested two options: 100-30,000 NIS or removing the lowest boundary and raising the upper boundary to 100,000 NIS.

¹¹ Copyright Ordinance, supra note 3, at Article 3a (Unofficial translation, S.K.)

¹² See C.A 592/88, Sagi v. The Estate of the Deceased Ninio, P.D. 46(2) 254, 271; C.A. 3616/92, Dekel v. Hasha, P.D. 51(5) 337, 352. See also, Greenman, Tony, Copyright—From the Age of Print to the Digital Age 491 (2004)Google Scholar.

¹³ C.C. (T.A) 2151/90, Ashraz Data Processing Ltd. v. Transbeton, P.M 27(1) 246 [hereinafter the District Court Decision].

¹⁴ Ashraz case, supra note 4, at end of para 18.

¹⁵ C.C. (Ja.) 472/90, Shor International Software Industries Ltd v. Jerusalem Gates Hotel Ltd, P.M. 26(6) 905 [hereinafter Shor).

¹⁶ Id., at middle of para 12.

¹⁷ Id.

¹⁸ Id., at para 10(g)(4).

¹⁹ See the Ashraz case, supra note 4, at para. 20.

²⁰ Sagi v. The Estate of the Deceased Ninio, supra note 12.

²¹ Dekel v. Hasha, supra note 12.

²² See the District Court Decision, supra note 13, at para. 45-49.

²³ Here the appellant was basing his claim on the 1988 amendment to the Act, see supra note 2.

²⁴ Ashraz case, supra note 4, at para. 21 and 23.

²⁵ See supra notes 7 & 8.

²⁶ The Act, supra note 1, at Article 1(2).

²⁷ Directive 2001/29/EC dated 22 May 2001.

²⁸ Israel has signed this treaty but has not ratified it.

²⁹ The Directive, supra note 27, at Article 5, clause 1.

³⁰ See the Ashraz case, supra note 4, at 17, para. 26.

³¹ Id., at 18, para. 26 citing 991 F.2d 511.

³² Id., at 519.

³³ 17 U.S.C.A § 117 section c (2002). It should be noted that according to the House Report the purpose of the amendment was to preserve the existing status quo in the field of computer program copyright law, in view of the need for a general revision of the law in that field: “It is intended neither to cut off any rights that may now exist, nor to create new rights that might be denied under that Act of 1909 or under common law principles currently applicable.” (House Report No. 94-1476).

³⁴ Charnelle, Ilan, The Justification and the Scope of the Copyright Misuse Doctrine and Its Independence of the Antitrust Laws, 9 UCLA Ent. L. Rev. 167 (2002)Google Scholar.

³⁵ The Copyright Misuse Defense was first mentioned in dictum in Morton Salt Co. v. G.S. Suppiger 314 U.S. 488, 494 (1942). It was expressly upheld for the first time by the Fourth Circuit in Lasercomb America Inc. v. Reynolds, 911 F.2d at 979 [hereinafter the Lasercomb Decision]. Since then, it has been established in both the Fifth and Ninth Circuits though it has yet to be established in the Supreme Court and in the remaining circuits.

³⁶ It should be noted that there is a significant body of legal literature that tackles the question whether the Misuse Defense is, or should be, an extension of anti-trust law, or whether its application is, or should be, policy-based.

³⁷ See Frischmann, Brett & Moylan, Dan, The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory audits Application to Software 15 Berkeley Tech. L. J. 865 (2000)Google Scholar.

³⁸ The Lasercomb Decision, supra note 35, at 978.

³⁹ C.A. 6141/02, Akum Ltd v. Galei Tzahal Radio Station, 57(2) P.D 625.

⁴⁰ See infra, section iv.

⁴¹ See, e.g., Atari Games Corp. v. Nintendo Co., Ltd, 975 F.2d 832, 846 (Fed. Cir. 1992).

⁴² Ravia, Haim, Bugs in the Law, Globes, 27 July 2003 Google Scholar.

⁴³ Id.

⁴⁴ The Ashraz case, supra note 4, at para. 28. This criticism was also expressed by AdvocateNoah, Zvi, In the Shadows of Outdated Legislation, Globes, 27 July, 2003 Google Scholar. In his article, he cites the limitation on the consideration the judges have in deciding what compensation to allocate as being the primary disadvantage of the set sums in the Statutory Compensation clause.

⁴⁵ The Ashraz case, supra note 4, at para. 30.

⁴⁶ Sagi v. The Estate of the Deceased Ninto, supra note 12.

⁴⁷ The Ashraz case, supra note 4, at para. 11.

⁴⁸ Id., 10, para. 12.

⁴⁹ International Survey of Specialized Intellectual Property Courts and Tribunals International Bar Association Intellectual Property and Entertainment Committee, London, January 2005 available at http://www.comml-iba.org/attachment/articles/88/Final_International_IP_Survey_edited-clean_28-02-05.pdf (last visited 7-1-06). The Survey defined the term “specialized intellectual property court” as a “permanently organized body with independent judicial powers defined by law, consisting of one or more judges who sit to adjudicate disputes and administer justice in the IP field” id., at 3.

⁵⁰ Id., at 14-16.

⁵¹ Id., at 16.

⁵² It took almost thirteen years, from the commencement of the Ashraz district court proceedings, for a final and binding decision to be given, in which time the CEO of Ashraz completed a law degree and qualified as a lawyer, representing Ashraz in the Supreme Court proceedings.