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In Is distributing software that makes modifications to video games legal? an example snippet of a video game license is given, which reads:

You may not copy the Software (except as specifically permitted herein) and, except as expressly permitted by law, you may not modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Software.

Presumably "as specifically permitted herein" gives you the right to copy the software to your computer and into memory to run it. But no such exception seems to be given allowing you to "modify" or "translate" the software where technically necessary. I'm not aware of any common computing platform where loading an application does not usually involve "modifying" it (to link it together in memory with required system dynamic libraries). And similarly, "translating" running software (from instruction set architecture instructions to some internal representation of micro-operations inside the CPU) is technically necessary for execution on almost any real computer. And setting a global variable in an anonymously-mapped page in memory will create a derivative work; the software almost certainly creates ephemeral derivative works of itself in normal operation.

Is it common for software license agreements to be so poorly drafted that, if taken literally, they fail to usefully license the software as would be needed for execution on real machines? Do courts tend to expand them to grant the necessary permissions after all, to fulfill the intent of the agreement? Or do they tend to read them restrictively, giving developers a free pass to extract damages from any ordinary users they don't like? Is there a statute about this that "expressly permits" people to actually use software they license?

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    When is modifying or translating software "technically necessary"? (Also, for what it's worth as an example, US immigration law has a clause forbidding aliens from entering and leaving the US "except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe." This approach to legal drafting is common: forbid the behavior you're regulating and then make exceptions. That way, if you forget to say something, the end result is more restrictive than you intended rather than more permissive.)
    – phoog
    Commented Jun 5, 2023 at 20:01
  • Laws and contracts are not taken "literally" meaning however you choose to interpret them. No one in the industry thinks that installing software means modifying, translating, reverse engineering, decompiling, disassembling, or creating a derivative work.
    – Tiger Guy
    Commented Jun 5, 2023 at 21:17
  • @phoog Software has been modified for a long time because the same software loaded into memory at address X will not work when loaded at address Y because addresses have to be adapted. It’s technically needed and likely the result is not considered a derivative work. MacOS X will often automatically translate software written for x86 processors into software for ARM processors. Probably not considered a derivative work either.
    – gnasher729
    Commented Jun 7, 2023 at 18:43
  • @phoog When it is technically necessary might be something a court would be or has been asked to decide. I would say it's technically necessary if the machines that the sellers of the software anticipate you running it on do it in the course of their normal operation. But more or less expansive definitions are also justifiable, depending on if one wants people to ever be SOL when attempting to actually buy a machine that can run their software at an acceptable speed and is supported by its manufacturer.
    – interfect
    Commented Jun 8, 2023 at 13:24

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There is also the part that says "except as expressly permitted by law". In the USA, you are allowed to run the software. This means the operating system making the copy that transfers the software from your hard drive to the RAM of the computer, and all necessary changes there. And this includes modifications to relocate the software, or to protect it against certain attacks by hackers, and I'm confident that Apple checked that it includes translating x86 machine code to ARM machine code and store the translated copy together with the original. Similar things have been done already around 2000 or so, and no software manufacturer has ever complained.

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  • Is there a relevant statute citation here? Nintendo for example has strong opinions on exactly where and how one ought to be allowed to run one's licensed software, as might anyone who sells separate licenses for x86 and ARM builds of a software product. The exact wording of the statute that expressly permits one to run one's licensed software would be relevant.
    – interfect
    Commented Jun 8, 2023 at 13:20
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    @interfect I forget where it is at the moment, but in legal terms, copying things from fixed storage (e.g. a disk) to transient storage (e.g. RAM) is effectively legally excluded from the definition of 'copying' as far as copyright law is concerned, and that has been mentioned on the site before. Similar arguments could apply to other technical copying which occurs. For example, CPU caches, browser caches, and so on.
    – Brandin
    Commented Jun 30, 2023 at 13:43

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