Subject: RE: Legal soundness comes to open source distribution
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Tue, 13 Aug 2002 22:43:11 -0700

> But the use of the software is not an exclusive right of the 
> author. That's 
> why click-wrap is problematic.

I understood the point that Rod Dixon was making is that section 117(a)
of the Copyright Act applies, by its own words, to "owners of a copy" as
distinguished from "licensees."  If that distinction matters, then
section 117 does not authorize a *licensee* to make a copy of the
software in memory in order to *use* the software; it only authorizes an
*owner of a copy* to do so.  

Whatever else open source licenses do, they do not explicitly make a
licensee the "owner of a copy."  To transfer ownership requires a
contract; a mere license won't do.

I note that section 117(b) states this differently.  It allows the
making of a copy by "the owner or lessee of a machine" as long as that
machine "lawfully contains an authorized copy of the computer program."


The conclusion I draw from Rod's point is that the copyright act cannot
be relied on as an authorization for use of software, at least to the
extent that use requires the making of a copy in memory.  

Rod, am I reading you correctly?

Regardless of this confusing point, why does this make click-wrap
"problematic"?

/Larry Rosen


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