Open source shareware?

Rod Dixon rodd at
Thu Nov 8 22:26:46 UTC 2001

The theory is that as a licensee, you are NOT an owner. Owners buy
products, they do not license, according to the theory. At issue is how
one might characterize the transaction involving the distribution of
software: is it a sale (which means the first sale doctrine might apply)
or is it a license (which might mean ostensibly that the licensor may
"withhold" application of the first sale doctrine).

Rod Dixon

On Thu, 8 Nov 2001, Forrest J. Cavalier III wrote:

> John Cowan wrote:
> >
> > USC 117 says (in part):
> >
> > # [I]t is not an infringement for the owner of a copy of a computer
> > # program to make or authorize the making of another copy or adaptation
> > # of that computer program provided [...] that such a new copy or
> > # adaptation is created as an essential step in the utilization of the
> > # computer program in conjunction with a machine and that it is used in
> > # no other manner [...].
> >
> > > The fact that a
> > > copyright holder can control his or her work at the level of a RAM copy
> > > may be big trouble for us. Ostensibly, one can hardly "use' software
> > > without the author's permission,
> >
> >
> > On the contrary.  The above says that you can copy the program if 1)
> > you own a copy, 2) you can't use it without copying it, 3) you don't use
> > the copy in any other way.
> I read the circuit court ruling "MAI SYSTEMS CORP VS PEAK COMPUTER,
> INC" from this URL,
> Frustrating reading, and frustrating conclusions.  What I take
> from it is that if anyone (besides you) services your computer, and
> they cannot run your copy of an operating system or other
> software to check something for you.
> But back to the shareware question.  From that ruling there is
> a footnote that confuses me.
>    5. Since MAI licensed its software, the Peak customers do
>       not qualify as "owners" of the software and are not
>       eligible for protection under 117.
> What does that mean?  (I can understand it if the wording
> was "Peak does not qualify as owner."  But this says that
> Peak's customers, who had a valid license from MAI, were
> STILL not owners.)  Is this a typographical error?  Or
> does it really mean that when you have a licensed copy of
> software, you do not have a copy that you own.
> Under what circumstances am I "owner of a copy" under
> US Copyright Act #117?  Am I owner of a copy even if
> the license says:
>    You agree that we own all copies, and you may not copy,
>    modify, sublicense, or distribute the Program except
>    as expressly provided under this License.  You are not
>    required to accept this License, since you have not signed
>    it.  However, nothing else grants you permission to modify or
>    distribute the Program or its derivative works.
> --
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