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Comment by hackingonempty | Hacker News Reader

Using software is not one of the exclusive rights of Copyright holders. If I have a legitimate copy of the software I can use it, I don't need a license. Just like I don't need a license to read a book.

Open Source licenses give license to the rights held exclusively by the author/copyright-holder: making copies, making derivative works, distribution.

An open source license guarantees others who get the software are able to make copies and derivatives and distribute them under the same terms.

This license seeks to gain additional rights, the right to control who uses the software, and in exchange offers nothing else.

IANAL but I think it needs to be a contract with consideration and evidence of acceptance and all that to gain additional rights. Just printing terms in a Copyright license wont cut it.

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I haven't decided my opinion on this specific license, ones like it, or specifically around rights of training models on content... I think there is a legitimate argument this could apply in regards to making copies and making derivative works of source code and content when it comes to training models. It's still an open question legally as far as I know whether the weights of models are potentially a derivative work and production by models potentially a distribution of the original content. I'm not a lawyer here but it definitely seems like one of the open gray areas.

> Using software is not one of the exclusive rights of Copyright holders.

To the best of my (admittedly limited) knowledge, no court has yet denied the long-standing presumption that, because a program needs to be copied into memory to be used, a license is required.

This is, AFAIK, the basis for non-SaaS software EULAs. If there was no legal barrier to you using software that you had purchased, the company would have no grounds upon which to predicate further restrictions.

> To the best of my (admittedly limited) knowledge, no court has yet denied the long-standing presumption that, because a program needs to be copied into memory to be used, a license is required.

This was specifically validated by the 9th Circuit in 1993 (and implicitly endorsed by Congress subsequently adopting a narrow exception for software that is run automatically when turning on a computer, copied into memory in the course of turning on the computer as part of computer repair.)

It is codified in 17 USC 117.

There is no legal barrier to using a legit copy of software. That is why software companies try to force you to agree to a contract limiting your rights.

> If I have a legitimate copy of the software I can use it, I don't need a license.

How can you have a legitimate copy of software without a license, assuming that the software requires you to have a license? You are simply using circular reasoning.

If someone puts their code on a web site like GitHub and invites the public to download it, then a copy made by downloading it there is a legit copy. I didn't agree to any contracts to download it and I don't need a license to use it. I do need a license to make copies or derivative works and distribute them. In this case the Copyright holder does provide a license to do so under certain conditions.

> How can you have a legitimate copy of software without a license,

You can because someone bought a physical copy, and then exercised their rights under the first sale doctrine to resell the physical copy. (With sales on physical media being less common, it’s harder to get a legitimate copy of software without a license then it used to be.)

> Using software is not one of the exclusive rights of Copyright holders.

Copying is, and copying into memory is inherently necessary to use. (Of course, in some cases, copying may be fair use.)

> If I have a legitimate copy of the software I can use it,

If you can find a method to use it without exercising one of the exclusive rights in copyright, like copying, sure, or if that exercise falls into one of the exceptions to copyright protection like fair use, also sure, otherwise, no.

> Just like I don't need a license to read a book.

You can read a book without copying it.

> > Using software is not one of the exclusive rights of Copyright holders.

> Copying is, and copying into memory is inherently necessary to use. (Of course, in some cases, copying may be fair use.)

Has this interpretation actually been upheld by any courts? It feels like a stretch to me.

> Has this interpretation actually been upheld by any courts?

That copying into RAM, including specifically in the context of running software, is included in the exclusive right of copying reserved to the copyright holder except as licensed by them? Yes, the main case I am familiar with being MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) [0]; note that for the specific context of that case (software that is run automatically when activating a computer in the course of maintenance or repair of that computer), Congress adopted a narrow exception after this case , codified at 17 USC § 117(c) [1], but that validates that in the general case, copying into RAM is a use of the exclusive rights in copyright.

[0] https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Comp....

[1] https://www.law.cornell.edu/uscode/text/17/117

Right on your second link:

> it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

> (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

i.e. the owner of a copy of a computer program has the right to make more copies if necessary to use it (e.g. copy-to-RAM, copy to CPU cache) as long as they don't use those additional copies for any other purpose. That same section also gives you the right to make backups as long as you destroy them when giving up ownership of the original.

> You can read a book without copying it.

Let's assume it's a really short book – say a poem – and by reading it, I accidentally memorized it. Have I now violated copyright?

I think something does not add up with this logic.

(Using US law for this)

You have not violated copyright because things in your memory are not copies. US copyright law defines copies as material objects in which a work is fixed and from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Your brain is a material object but the the memorized book in your brain cannot be perceived, reproduced, or otherwise communicated directly (I can't look at your brain and "read" the book) and we do not have any machines or devices that can extract a copy of it.

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