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, > http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm > > 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. > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 > -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3