From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Organization: Colorado SuperNet, Inc.
Date: Fri, 20 Nov 1992 14:09:56 GMT

amdunn@mongrel.UUCP (Andrew M. Dunn) writes:

>>I haven't looked, but I would guess that built into the license you 
>>get from the publisher of the operating system is a license to format
>>(and make bootable) all the disks you want.

>Format, yes.  Boot, no.

>Formatting doesn't make a copy of anything Microsloth gave you.
>It just sets up a blank disk with a certain pattern, and Microsloth
>doesn't hold copyright on a blank disk.  I'm sure of it.

>However, they do hold copyright on all of the executable programs
>they provide to you.  Making a disk bootable puts several of those
>programs onto the disk.

Technically, formatting a diskette doesn't put anything on it, but...
The FORMAT command with the /s option does. That option causes the
program to make the diskette bootable, by copying the 3 system files
on to it. Try making a judge understand the difference..

>Can't be.  Copyright has nothing to do with HOW the copies are
>made.  It deals in whether copies are made or not.  If they are allowed,
>you can make them any way that's convenient.

I respectfully disagree. I still contend that when a "format a: /s"
command in its "formatting" places the hidden system files on the
diskette, that that is either fair use, or an implied license by 
Microsloth to do such. Copying with a disk duplicator cannot have
any such defense.

If Microsoft doesn't want people to copy system files onto diskettes
to make them bootable without a license, etc., then I feel that somewhere
in either the license or manual, they should so say. I think that a 
number of users consider making a diskette bootable a basic DOS function,
In otherwords, there is a difference in the minds of many users between
the actions of the FORMAT command and the actions of the COPY(XCOPY) 
command. Itheir minds the COPY command has copyright ramifications,
the FORMAT command does not. For that reason, since the law tradionallyy
interprets licenses against the licensor, it is Microsofts duty to
make their position on system files obvious.

Another argument is that copying the files is fair use since
the intended recipient of the diskette also has a licensed copy
of DOS. This is a rational assumption since DOS is present on almost
all PC's these days. Most of the versions of DOS are probably legit.
since it often comes bundled, and it is so cheap. 

I see little, if any difference between making copies of those files
for oneself under one's DOS license, and making copies of those files
for others who also have valid DOS licenses. Why should Microsoft
deserve another licen se payment, when the diskette is invariably going to be
run on a system that has a valid DOS license.

The reason that the story has changed since DOS originally came out
is that 1) almost all systems these days have hard drives, which 
require a permanent copy of DOS, 2) prior to 5.0, one could not buy
DOS from Microsoft, but had to buy it from the hardware vendor, and
3) DOS is preinstalled on probably a majority of new systems. 
>>THIS IS NOT LEGAL ADVICE!!!!!!

>Neither is this.

Bruce E. Hayden
(303) 758-8400
bhayden@csn.org

Newsgroups: misc.legal.computing