- 36 -
because "the intrinsic value of the * * * [taxpayer's] software is
attributable to its intangible elements rather than to its tangible
embodiments." Id. at 99-100. I believe this interpretation of law
is correct; thus, I would continue to follow it, notwithstanding
Comshare.
IV. Computer Software Is Different From Master Film Negatives and
Seismic Data Tapes
As noted in Ronnen v. Commissioner, supra, and as it appears
clear to me today, computer software is distinguishable from the
master film negatives in Walt Disney Prods. v. United States, 480
F.2d 66 (9th Cir. 1973), and 549 F.2d 576 (9th Cir. 1976), and the
seismic data tapes and films in Texas Instruments. In those cases,
the tapes and films contained original recordings of physical
events that could never be perfectly duplicated or repeated. As
noted by the Court of Appeals for the Fifth Circuit in Texas
Instruments, if the original recordings were destroyed prior to
reproduction, the information stored thereon would also be lost.
Because the seismic data recordings (in Texas Instruments) and the
motion picture negatives (in Disney) could never be perfectly
recreated if the originals were destroyed or lost, those courts
held the intangible information was inextricably bound to its
tangible medium. But as preliminarily noted, no such relationship
exists between a computer program and the magnetic tape or disks
upon which the computer program is stored.
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