Contract or License?

Rod Dixon rodd at
Fri Sep 14 22:20:19 UTC 2001

If I recall correctly, we have discussed this issue before on this list.
It seems to me that Karsten and Larry are saying the same thing, but doing
so using different language. The Copyright Act grants copyright holders
exclusive rights over: reproduction, public display, distribution,
derivative works, public performance (and more recently, digital
transmission of sound recordings). None of those rights explicitly refer
to "use." Indeed, copyright holders cannot control all "uses" of their
works because of various copyright doctrine that preclude such control
such as, scenes-a-faire, idea/expression dichotomy, and fair use. Despite
this fact, however, copyright law and software is not an easy fit, and the
Mai v. Peak case is still good law. Today, a copyright holder may control
the RAM copy of a software copyright-protected work. 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, if he or she can control copying at the
point of a RAM copy. This practicial consideration, I believe, is
Karsten's point. Indeed, section 117 of the Copyright Act is a limitation
- - a limitation that is quite limited - - on this RAM right (no pun


On Fri, 14 Sep 2001, Karsten M. Self wrote:

> on Fri, Sep 14, 2001 at 09:31:10AM -0700, Lawrence E. Rosen (lrosen at wrote:
> > Karsten,
> >
> > > > Copyright law does not restrict use of an authorized copy.
> > >
> > > It does now.
> > >
> > > Under 1201, there are various uses of a copy which are prohibited.  If
> > > a content control mechanism prohibits certain types of use, then
> > > circumventing the control (arguably a use) is prohibited, under Title
> > > 17.
> >
> > Copyright law does not prohibit use.  It prohibits reverse engineering
> > (and similar activities) under certain circumstances.  I didn't intend
> > to be subtle about the meaning of the word "use."
> I hate to be the one to out-lawyer the lawyers....
> OK, no I don't. ;-)
> But I did want to point out that the expression v. usage boundary has
> now been blurred.
> Peace.
> --
> Karsten M. Self <kmself at>
> Praying for the victims.

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