Subject: RE: [FYI] Microsoft license spurns open source
From: "Ravicher, Daniel B." <DRavicher@brobeck.com>
Date: Tue, 26 Jun 2001 06:54:01 -0700

> -----Original Message-----
> From: kragen@pobox.com [mailto:kragen@pobox.com]
> 
> 
> I don't think there's any need to respectfully agree to disagree.  This
> is a simple matter of law, not of individual opinion, and I don't think
> it's a particularly debatable point of law.
> 
> The fact is that there are things you are allowed to do with
> copyrighted works without infringing the copyright; if you are not
> infringing the copyright, the question of fair use does not even
> arise.  This is not a matter of opinion.

Law, especially copyright law, is largely interpreting the constitution,
statutes and regulation after two (and sometimes more) opinions are
presented.  Is the DMCA an unconstitutional abridgement of the 1st
Amendment?  Are shrink-wrap, click-wrap and act-wrap valid forms of contract
formation?  Is reverse engineering a fair use?  If the law was a matter of
fact, then reasonable people couldn't disagree and there would be a lot less
litigation.  However, law is not settled, reasonable people can and do
disagree.  Heck, even the justices of the Supreme Court disagree with each
other.  If it's OK for them to disagree, I don't see why it isn't OK for us
to do likewise.
 
> Normally I wouldn't go after someone like this, but I think it's more
> important for readers of this list to have correct information about
> copyright than for Daniel Ravicher's pride to be saved.  
> Daniel, please admit your error or defend your position.

My position remains the same that I stated before; if one makes a copy
(whether in RAM, on e-mail, in a hard drive, on paper, whatever, any copy
for any reason) of a copyrighted work then that person violates 106(A).  [I
don't know what "use" or "run" means, but I believe that to do either
requires one to in one way or another make a copy.  If I have to make a copy
in my RAM or on my hard drive or I print a copy out so that I can see it,
these are all copies despite what "use" I've made them for.]  Now, there are
a couple defenses to literal infringement, the two largest being (1) license
(permission, or authorization (as Seth called it) from the copyright owner
to do the copying), and (2) fair use.

But, I expect you and Seth (and others here) still disagree with me.  And
that's fine.  My arguments aren't going to change your mind, and vice versa.

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