No too long ago, the Software & Information Industry Association (SIIA) wrote an amicus brief in support of Blizzard in the infamous MDY v. Blizzard case. Within that brief, the SIIA wrote:
Today, licenses govern most mass market software transactions, and the software industry has grown to over $500 billion in annual revenues.
Here the SIIA points out that the $500 billion software industry almost exclusively uses so-called "licenses" to distribute their products. The appeals court will hopefully carefully take note of this fact, because it is an indicator of what will happen to our country's copyright laws if the district court's MDY v. Blizzard decision is upheld.
The thing is that section 117 of the Copyright Act only has meaning if users of software own the copies of software that they use. If the copyright owners own all of the copies, then there is nobody who is affected by section 117. Section 117 would basically become a dead law. A ghost-town within the law books, complete with chirping crickets and tumbleweeds. It might as well just be dropped from the books.
In other words, by allowing the SIIA and the companies it represents to unilaterally claim that all software is licensed, not sold, the courts would effectively be promoting the software industry to the position of the Third Chamber of Congress. It would give the software industry the ability to write their own "laws" about what actions (or inactions!) would constitute copyright infringement anywhere software is involved. This is because, without section 117, EULAs would be the only voice that would determine what is and what is not copyright infringement. Imagine that a company would get to decide what rules consumers will need to follow, lest they be hammered by the full force of copyright law complete with its exorbitant statutory damages and even criminal penalties. This is a pretty scary prospect, and is a prospect that the appeals court should not take lightly when considering MDY v. Blizzard.