Seth Finkelstein has a different take on Krause v. Titleserv, the recent Second Circuit case that interprets Section 117 of the Copyright Act in a consumer-friendly way.
I think that the case is important, and Seth thinks that it’s less so. I focus on two things. First, though the case isn’t the first appellate decision to interpret Section 117 to limit the power of a licensor to declare unilaterally that code is licensed (DSC v. Pulse in the Federal Circuit purports to come to the same conclusion), it’s the first significant opinion to make that point a holding, by actually finding in favor of the purported “licensee.” In other words, this court puts its money where its mouth is. Second, the opinion is written by Judge Leval, who knows a lot about copyright law and whose opinions and articles on copyright are widely read and respected. He’s a heavyweight, and when he speaks, the copyright world usually listens.