847 F.2d 255 (CA 5th Cir 1988)

Background
Quaid Software made RAMKEY which, by emulating PROLOK’s “secret fingerprint,” allowed copies of Vault’s clients software to function without the original program disks. Quaid created RAMKEY by loading PROLOK and analyzing what it did.

Vault owned copyright on its PROLOK software (Exclusive right to copy) and argued:
1.Copyright violations
2.Contributory infringement
3.Derivative work by Quaid
Quaid argued that while some may use RAMKEY for unauthorized use, copying PROLOK’ed software served substantial non-infringing use for archival purposes

Trial court held that copying for archival purposes was substantially non-infringing.

Vault argument (narrow) is that since copying of ROM is unauthorized by statute, the medium of storage dictates whether the archival exception applies, and that owners can only make archival copies to protect themselves from only mechanical or electrical failure, not "physical or human mishap".

Court reasons that in the absence of direct statute, they used Sony decision and would not apply law that was not written. They viewed the CONTU report’s list of potential damages to software as illustrative, not exhaustive, and used the broad view to include all harms.

Final ruling
The ruling was upheld. Since the protection of all harms to one’s legally owned/licensed software are non-infringing use, a user seems to be able to make archive copies.