Subject: Re: [FYI] Microsoft license spurns open source
From: kragen@pobox.com (Kragen Sitaker)
Date: Tue, 26 Jun 2001 23:21:23 -0400 (EDT)

Daniel Ravicher writes:
> > 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.

I didn't say it was a matter of fact, but of law; while there are fuzzy
areas of law, I don't think this is one of them.

Whether or not "copying" a piece of software into RAM is copyright
infringement *is*, however, a fuzzy area of law; there is caselaw on
both sides, although I can't remember the cases at the moment.  The
plain language of the copyright law would seem to imply that it is
infringing, but that interpretation would extend the reach of copyright
law enormously, far beyond what was intended when the law was written.
Sega does strongly suggest that if it is infringement, it is probably
fair use if it is done for a legitimate purpose, but as you said,
that's not a slam-dunk.

I was only arguing with your original statement:

> > If you don't accept a license from the copyright owner, you have no
> > legal right to make "ordinary uses" of the work or to do anything else
> > with the work unless such acts constitute fair use.

If, by "ordinary uses" and "anything else", you mean "ordinary uses
that involve copying the work into RAM" and "anything else that
involves copying the work into RAM", then your statement is debatable;
but as it stands, I still think it is incontrovertibly mistaken.

I should disclaim, though:  I am not a lawyer, and this post is not
intended to constitute legal advice to anyone.

-- 
<kragen@pobox.com>       Kragen Sitaker     <http://www.pobox.com/~kragen/>
Perilous to all of us are the devices of an art deeper than we possess
ourselves.
       -- Gandalf the White [J.R.R. Tolkien, "The Two Towers", Bk 3, Ch. XI]