"Fair Use" was always strictly limited and Software Licenses were always law. Nothing is dead. I don't know where you got the idea they weren't. You can't just make a copy of someone's software and just use it without paying and claim "fair use." Fair use" was a concept that allowed the citation of a small portion of a written work of a sentence or two, or a paragraph, or a outtake of a recorded work, of under 30 seconds for example, for criticism or quotation purposes in a scholarly paper or for reporting without triggering copyright infringement. It also allowed the copying of software you are licensed to use for backup and archival purposes so long as that was the sole purpose and most software licenses specifically make provisions for that. For personal recordings or videos, it allowed a single backup copy be made for everyday use while archiving the original for safe-keeping. The other "fair use" was the installation of software on to the buyers computer(s) for normal operational use within the limits of the Software License as delineated by the grantor of the license. It did not allow violation of Software License Agreements or End User Software Agreements. AS cited by Judge Alsup there is a large body of settled case law backing that conclusion and very little disputing it... in fact Psystar could come up with almost none backing their position.
The law, as far as licensing of software goes, has always made a distinction between a "sale" and a "license" when discussing the "doctrine of first sale," recognizing that the "doctrine of first sale" does not apply when a sale has not taken place—which is the case in software "sales" as what is really being sold is a "permission" to use the software, a license—and that the licenses contract provisions take precedence so long as they are properly written, meet public policy, can be read before the software is installed, and provision is made that allows the software to be returned. Once the software license agreement has been "clicked through," installed, it is, by law, assumed to have been agreed to, and its provisions are then in force. At that point, the only part of the "doctrine of First Sale" that applies is that the buyer may sell his license to operate that software to another party so long as all copies in his possession, including any archival, backup, or operational or work copies on his computer are deleted, and his originals are transfered to the buyer, who then becomes the the subsequent owner of the license, subject to the same restrictions of the license.
” “Fair Use” was always strictly limited and Software Licenses were always law. “
Hardly.
“You can’t just make a copy of someone’s software and just use it without paying and claim “fair use.””
Where is ANYONE saying it would be fine to do this? Even Psystar wasn’t doing this!
“The law, as far as licensing of software goes, has always made a distinction between a “sale” and a “license” when discussing the “doctrine of first sale,””
Which is an incorrect distinction.