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As far as I understand, the FSF's stance has always been that copyright law does not cover use of a piece of software you have in your possession, and they have done a lot of thinking on the subject. You can use the copy you downloaded, no license needed.

Modification, distribution, making it part of another larger work -- you need a license for those.




The FSF certainly has well considered opinions, but their opinions are in many respects outside the mainstream.

People, even lawyers, often use reductio ad absurdum to argue that some behavior isn't infringing. In a famous draft opinion in the Sony v. Betamax Justice Stevens wrote,

  It would plainly be unconstitutional to prohibit a person
  from singing a copyrighted song in the shower or jotting 
  down a copyrighted poem he hears on the radio.
All the other justices disagreed with Stevens on the second point--it's elementary law that to jot down a poem you hear on the radio is infringement of the reproduction copyright.[1] This sounds absurd (and, well, it is!) but copyrights and patents are a little absurd to begin with.

Usually the absurdity of the scope of copyright law is tolerable because of the impossibility of a plaintiff discovering or proving infringement in personal, private use. Other times courts may use Fair Use or other technicalities to avoid absurd outcomes. But many times the absurdity lies and people are penalized. In any event, courts aren't disposed to finding non-infringement. Modern courts have narrowed considerably traditional theories like merger and the idea/expression dichotomy that circumscribed the scope of copyright outright. And it's non partisan. If Ginsburg had her way copyright would see a considerable expansion in scope. (Her daughter is the author of an influential treatise on copyright, which propounds a radically expansive view of copyrights.)

[1] I forgot where I read the historical account about all the other justices disagreeing on that specific point. I think it was in one of my treatises.


You can’t run the program without making a copy into memory. That is the theory upon which running software without a license is a copyright violation.




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