- 37 -
such a broad construction for purposes of the ITC, I similarly
disagree with its extension to ACRS.
1. Absence of Intellectual Property Rights
The second basis of the Norwest majority's holding is that
no copyright rights were passed to Norwest (or Sprint). In
Norwest the Court failed to offer any analysis or cite any cases
which indicate why the presence or absence of such rights should
control the character of the tangible medium which, as the
majority itself points out, is distinct and separate property
from the copyright rights. Norwest Corp. v. Commissioner, supra
at __ (slip op. at 27). The notion that copyright rights are
separate and independent from a tangible embodiment is well
supported. In Rev. Rul. 80-327, 1980-2 C.B. 23, the rights to
manufacture and distribute books were acquired with the plates
used in the printing of the books. The Service analyzed the two
types of property separately and ruled that the plates were
tangible, while the distribution rights were intangible. There
simply is no rational basis to conclude that the presence or
absence of one separate and distinct property interest, the
intangible copyright right, should control the character of other
separate and independent property.
Furthermore, this approach ignores the fact that the
computer source code, which is intellectual property, is property
separate and distinct from the copyright rights and the tangible
medium. As the Court of Appeals for the Sixth Circuit indicated
in Comshare, Inc. v. United States, 27 F.3d 1142, 1145 (6th Cir.
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