Subject: RE: Contract or License?
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Fri, 14 Sep 2001 15:02:24 -0700

> > > > 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.

I've received two responses so far which seem to argue that the DMCA
somehow relates to my original point that copyright law prevents
unauthorized copying, creating derivative works, or distributing same --
but that copyright law doesn't prevent use.  

I recognize that the DMCA has adversely affected the balance previously
set with the "fair use" provisions of copyright law.  I hope we all
strive to change that unfortunate addition to what was previously a
well-balanced law.  

The word "use" in my email was in the following sense: "To put into
service or apply for a purpose, employ."  (The American Heritage
Dictionary of the English Language, Fourth Edition.)

The DMCA does not restrict the "use" of a software program for the
purposes for which the software was intended.  Reverse engineering does
not itself require that the software be used.  It may be necessary to
*copy* a program into computer memory in order to reverse engineer it,
but you don't have to *execute* the program to accomplish reverse
engineering.  

Furthermore, the DMCA in no way relates to my major point, which was
that a software license is a contract subject to contract law, and that
under contract law certain restrictions on the *use* of software can be
agreed to by the parties.  

I don't understand at all your point, Karsten, that the "expression v.
usage boundary has now been blurred."  What boundary is that?  Perhaps
you're referring to the expression/idea boundary between copyright law
and patent law?  I do believe that the DMCA has unfortunately allowed
industry to protect their *ideas* by applying copyrights to their
software and then implementing control mechanisms to prevent reverse
engineering.

I respect and admire you, Karsten, but I still don't feel
"out-lawyered."  :-)

Regards, 

/Larry Rosen


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