Maybe their argument will be that Section 117 doesn't apply because it's not an owner of a copy but a licensee?
If I recall right clauses saying what was bought was a license not a copy have been found illegal. Autodesk tried using this claim, that they sold licenses not copies of AutoCAD, to prevent resellers from selling AutoCAD on eBay and elsewhere. See Vernor v Autodesk, Inc. The judge ruled Autodesk sold a copy not a license.