[jarpadat]

So, one answer (not necessarily the right one!) to how you can use software without copying it is that "the license says you can". In other words the license definitely views "running" and "copying" as distinct, regardless of you, me, or federal law.

The other, maybe more familiar idea to lawyers, and maybe more plausible to you, is the one in MAI v. Peak, that running is copying by definition. (The argument is based on the idea that running a program copies it into RAM, so we don't even need to talk about how you obtained the software.)

The way this shakes out is as follows:

a. If running the program is "not covered by this License", then we can stop reading the license and return to copyright law. But copyright law says we need a license to run (that is, to copy, MAI v. Peak) the program, so where do we get it, if not from "this license"? Bit of a puzzler.

b. If "running the Program is not restricted", maybe that sentence is by itself some kind of license to "run" the program, even though that contradicts the "not covered" part? If so, we need to understand what the license means by "run" which is evidently something different than "copy".

Very probably, what this clause originally meant was that people who think like MAI v. Peak are wrong and nobody should need a license to run software. If so, it's pretty challenging to turn around and argue "just kidding, they do"

[butlerm]

Congress has changed the law since MAI v. Peak specifically to allow users to create copies and adaptations of software programs as an essential step in running or utilizing the program in question on a machine, or for limited archival purposes (i.e. backups).

"Adaptation" is another name for "derivative work". So it would appear that it is not a copyright violation for an end user to load or dynamically link modules with incompatible licenses into ram, or statically link them together, or make binary modifications, as long as what they are doing is necessary to use the program.

It might still be a license violation of course, but it is probably a fruitless exercise to go after users who are exercising what are ordinarily considered to be well established rights necessary to use the software, the very thing that made MAI v. Peak an unfortunate ruling that Congress had to fix. Surely that sort of thing - even by third party technical support - should have been considered fair use from the beginning.

[tsimionescu]

> Congress has changed the law since MAI v. Peak specifically to allow users to create copies and adaptations of software programs as an essential step in running or utilizing the program in question on a machine, or for limited archival purposes (i.e. backups).

That's not entirely true, as far as I understand. The rule that a user may copy the work to RAM as a fair-use exemption already existed at the time of MAI v Peak. However, it was found not to apply, since the person that loaded the program into memory was not MAI's client, but a Peak employee, who was fulfilling a separate contract with MAI's client, and who had never legally obtained a copy of the work from MAI (which would have entitled them to load it in memory themselves).

Basically, the court at the time found that if I have a copy of Windows from MS, I am allowed to copy it into memory and run it. But, a repairman I hire is not allowed to load my copy into memory and run it themselves, unless they also legally own a copy of Windows.

However, Congress did amend copyright law in light of MAI v Peak, to extend the existing fair use exemption for copying into RAM to people acting as service/repair contractors.

[butlerm]

Thanks for the clarification on that. Either way, MAI v. Peak was kind of a disastrous decision that presumably could have easily been resolved under fair use for the service contractor. Congress included Section 107 for a reason, and no doubt part of the logic is that courts use it instead of creating a make work program for Congress on the subject.

That would seem to go double for whichever court decided that ephemeral copies in RAM are "fixed" in a "tangible medium of expression", in direct contradiction of the plain meaning of the term.

[tsimionescu]

> The other, maybe more familiar idea to lawyers, and maybe more plausible to you, is the one in MAI v. Peak, that running is copying by definition.

That is a bit over-simplified. The important part in MAI v. Peak was that Peak was a third party to the license between MAI and their client. The court recognized that MAI's client had the right to load/copy the program that they had acquired from MAI into memory without any additional license from MAI - there was already an explicit exemption in copyright law for this. However, they decided that this right can't be extended to a 3rd party (Peak, who as acting as a support technician), even if on the same machines.

[tkw01536]

In its’ very basic form a license has two distinct purposes:

a) limit whatever rights are granted by copyright law b) grant new rights that go beyond copyright law

> Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted

I don’t see a contradiction here.

The first part states that anything being granted by this license (purpose b) only applies to copying and distributing.

The second part simply states that no new restrictions (in the sense of purpose a) are made.

To be more explicit, the paragraph should be read as:

> The act of running the Program is not additionally restricted

[nmz]

If true then this means before you even download the program you must agree to its license. only then are you allowed to download which in turn copies the program to ram and then to a FS.