[dvd-discuss] Re: TurboTax for free?

[John Schulien <schulien(at)speakeasy.net>]

Seth Finkelstein <sethf(at)sethf.com> writes:
 > I believe the situation is that you have indeed
 > been sent a gift, of a beautiful TurboTax coaster.
 > You are free to use this gift of a coaster/frisbee/
 > object-d'art as you wish. However, installation
 > of the software it just happens to contain is
 > another matter. That is restricted by general
 > copyright, DMCA, etc.

I'll make the argument that installation of the
software is ONLY restricted by the DMCA, not by
general copyright.

There is established case law that any goods of
value received in the mail unsolicited are
considered to be a gift, and that the recepient
has full ownership of the property.

| 17 USC 117(a) Making of Additional Copy or
|               Adaptation by Owner of Copy. -
|
| Notwithstanding the provisions of section 106, 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 ...

Certain software licenses attempt to circumvent
this section of copyright law by forcing you to
"agree", as a condition of receiving or using
the software, that ownership of the physical media
is retained by the copyright holder.  Such an
arrangement would make this section inapplicable.
However, it appears that the fact that the media
was received as unsolicited mail would clearly
establish you as the owner of the CD copy, and
establish your right to install and use it under
copyright law.

The DMCA is another issue. It would still appear to
be a violation of the DMCA to actually exercise
your rights under the rest of the copyright
statute.  Of course, that's exactly what the
DMCA was designed to do.