Contract or License?

Karsten M. Self kmself at
Fri Sep 14 23:38:50 UTC 2001

on Fri, Sep 14, 2001 at 06:20:19PM -0400, Rod Dixon (rodd at wrote:
> 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.
> 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
> intended).

Not quite.  There are specific usage restrictions imposed by the DMCA
that aren't strictly limited to RAM images.  From my earlier comments to
the free-sklyarov list (which focusses more strongly on DMCA issues):


on Thu, Sep 13, 2001 at 09:20:29AM -0400, Roger Sperberg (rsperberg at

> Long before there was the capability for computers to read a text
> aloud to you, the audio rights for books were separated out as a
> revenue source for publishers.

Audio rights as expressed by phonocopies.  Not audio rights as expressed
by a different interpretation path of the same fundamental underlying
copy of data.

Any attempt to use copyright law to constrain use of a copy of a work --
use in such a form that does not produce a fixed copy in tangible
medium, and text-to-speach is such non-fixed expression of a work -- is 
creating a fundamentally new interpretation of copyright law.  Section
1201 has already done this, but barring 1201, I cannot see
text-to-speech as an exclusive right.

Copyright specifically addresses various works covered by copyright
(sections 102 and 103):

  (a) Copyright protection subsists, in accordance with this title, in
  original works of authorship fixed in any tangible medium of
  expression, now known or later developed, from which they can be
  perceived, reproduced, or otherwise communicated, either directly or
  with the aid of a machine or device.  Works of authorship include the
  following categories:

    (1) literary works;
    (2) musical works, including any accompanying words;
    (3) dramtic works, including any accompanying music;
    (4) pantomimes and chreographic works;
    (5) pictoral, graphic, and sculptural works;
    (6) motion pictures and other audiovisual works;
    (7) sound recordings; and
    (8) architectural works.

  (b) In no case does copyright protection for an original work of
  authorship extend to any idea, procedure, process, system, method of
  operation, concept, principle, or discovery, regardless of the form in
  which it is described, explained, illustrated, or embodied in a work.

As I read that, securing copyright protections to prohibit a mode of
extraction of expression is expressly excluded by 102(b), as a "process,
system, [or] method of operation".


Karsten M. Self <kmself at>

Praying for the victims. 
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