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distribute.” Id. at 1143. The source code was converted into
executable code, and from a master copy of the executable code,
duplicates (executable code software) were distributed to
Comshare's customers. Id. at 1144.
First, the Sixth Circuit, citing the statutory language,
acknowledged that Congress extended the ITC to tangible personal
property in general, subject only to specified exceptions
inapplicable to the case at bar. Id. at 1145. The court noted
that the legislative history supported a broad interpretation of
the term “tangible personal property”. Id. Considering the
legislative purpose in enacting the ITC, the Sixth Circuit
believed that Congress intended “to encourage precisely the kinds
of investments” made by Comshare in acquiring the master source
codes. Id. at 1146.
The Sixth Circuit then analyzed the line of cases beginning
with Walt Disney Prods. v. United States, 327 F. Supp. 189 (C.D.
Cal. 1971). The court could not distinguish film negatives used
to make positive prints of movies from computer tapes used to
make copies of executable code software. The Sixth Circuit then
considered Texas Instruments, Inc. v. United States, supra, and
considered “highly pertinent” the language quoted above relating
to the intrinsic value test. Comshare, Inc. v. United States,
supra at 1148. The court stated that “[u]nless the Fifth
Circuit's reasoning is somehow flawed, Texas Instruments would
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