Microsoft Corporation - Page 32




                                       - 32 -                                         
         The mere fact that sound or video recordings can be digitally                
         represented does not transform them into computer software.                  
              Computer software is fundamentally different from motion                
         pictures and sound recordings.  Within the purview of the                    
         parenthetical, (1) “films, tapes, and records” are content specific,         
         and (2) “similar reproductions” refers to “films, tapes, and                 
         records” on media that might be invented in the future.  In sum, we          
         hold that copyrights in computer software do not constitute section          
         927(a) “export property”.   Support for this holding is found in the         
         temporary regulation to which we now turn our attention.                     
              2.  Interpretation of the Temporary Regulation                          
              Generally, temporary regulations have binding effect and are            
         entitled to the same weight as final regulations.  See UnionBanCal           
         Corp. v. Commissioner, 113 T.C. 309, 316 (1999); Peterson Marital            
         Trust v. Commissioner, 102 T.C. 790, 797 (1994), affd. 78 F.3d 795           
         (2d Cir. 1996).  We interpret temporary regulations in toto rather           
         than phrase by phrase.  See Norfolk Energy, Inc. v. Hodel, 898 F.2d          
         1435, 1442 (9th Cir. 1990).                                                  
              The temporary regulation comports with the language of the              
         statute.  It succinctly states that, although copyrights do not              
         constitute export property, copyrighted articles, such as computer           
         software, do qualify as long as the article is not accompanied by a          
         right to reproduce outside the United States.   Permitting a right           








Page:  Previous  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  Next

Last modified: May 25, 2011