tp@mccall.com (Terry Poot) (04/22/91)
[Lordy, lordy, not again. PLEASE don't start the shareware flames in news.admin. I'm directing followups to alt.sources.d. I'm sure they don't want it either, but it fits there better than here, and he did post it to alt.sources.] In article <1566@tronsbox.xei.com>, tron1@tronsbox.xei.com (Kenneth Jamieson) writes: > Hmm.. this is an interesting question ... > > I posted a shareware program to alt.sources, and as a result >recieved the following letter : >... >I have noticed that you sent a commercial message through this system. >... >51 kilobytes of information. The minimum fee for the storage of this >object is > > 51 * .10 * 13 = US$66.30 >... >This letter is not a joke. > >I replied: > > Fat chance. Have fun and try whatever you wish, until there is a >legal judgment to the above effect, any use by you that does not comply >with >the term os the shareware agreement will be held as a violation of the >US copyright code. > > If you wish to pursue this matter, feel free. > > I did not request you or your company to store, forward or provide >any service whatever, and , much like the mail order system, you cannot >charge >for a unrequested service or product. He's as right as you are (or as wrong). I don't think he can force you to pay. On the other hand, your so-called license is meaningless. (I guess you thought my email telling you I thought your terms statement was a good joke. I guess you didn't get it.) Copyright controls who may copy the file. You give explicit permission to anyone to copy it unmodified, and actually request them to do so. That is the only part copyright has to play. Asking me not to use it unless I pay is a request with no legal force. I didn't ask for this, and I didn't agree to the terms. I do have a legal copy. Since I own my copy, I can do what I want with it, within the bounds of copyright law, which basically keeps me from selling it. Shrink-wrap licenses are considered questionable by some, but your notice has less force. With a shrink-wrap license, it states that by opening the package you agree to the license. Thus the user has to do something that indicates agreement with the license (whether that would hold in court is another debate, please don't address it here). With your software, I had to do nothing to receive the code. I didn't agree to anything, and you gave it to me anyway. I'm no lawyer, but I'll bet you couldn't sue me for violating your license (your copyright is another matter entirely; as I said in you email, it looked valid and will be respected). Yes, shareware is posted to the net, (though I don't think any of the comp.sources groups still take it), but that doesn't mean that everyone thinks that shareware restrictions in software posted to the net have any meaning. I don't. I'm not likely to pay for such software. As far as I'm concerned, it is like you sending me a present in the mail, with a bill attached. I never asked for the present, but that doesn't mean I'll return it. US law says I can keep it (or so I hear) and you can't charge me for it. email doesn't get the same coverage by law (yet, go EFF!), but I think of them that way. BTW, I'm much more likely to pay for software that requests a contribution IF I find the software useful. This is the proper way to give away software and get money for it. (The other way is to sell adjunct products, like support, nice docs, etc.) -- Terry Poot <tp@mccall.com> The McCall Pattern Company (uucp: ...!rutgers!ksuvax1!deimos!mccall!tp) 615 McCall Road (800)255-2762, in KS (913)776-4041 Manhattan, KS 66502, USA
scs@iti.org (Steve Simmons) (04/22/91)
tp@mccall.com (Terry Poot) writes: >Shrink-wrap licenses are considered questionable by some, but your notice >has less force. With a shrink-wrap license, it states that by opening the >package you agree to the license. Thus the user has to do something that >indicates agreement with the license (whether that would hold in court >is another debate, please don't address it here). With your software, I had >to do nothing to receive the code. I didn't agree to anything, and you gave >it to me anyway. I'm no lawyer, but I'll bet you couldn't sue me for >violating your license (your copyright is another matter entirely; as I >said in you email, it looked valid and will be respected). Just FYI, this is comparable to the unsolicited shipment laws. If someone sends you an unsolicited package, you get to keep it. They can bill you later, but you are under no obligation to pay that bill. No contract has been executed, no licence signed, no obligation entailed on your part. If the sender wants to get their merchendise back they have to depend on your good graces (and yes, you can ask for payment for shipping and handling). Call your post office, check it out. Note I'm not saying the law applies to unsolicited shareware, just that it appears the closest comparable item. This law does not apply to book clubs or other things where you agree in advance to return a card saying you don't want the merchendise. Yeah, sue! I'd love to see this settled. -- "Our informal mission is to improve the love life of operators worldwide." Peter Behrendt, president of Exabyte. Quoted in Digital Review, Feb 4, 1991.
brad@looking.on.ca (Brad Templeton) (04/23/91)
Copyright controls who can copy a file. By posting your message to USENET, you caused it to be copied to the file /u/news/news/admin/12345 (or whatever) on my machine. I can't charge you for that, because when I set up a USENET link I did it aware that people would send files to my machine in this manner without expectation of paying. However, the copyright on your article is still yours. You can put further restrictions on it. You have, implicitly, given me permission to read it -- ie. copy it into my newsreader for formatting, etc. I also have, under copyright law, the right to make archival copies. I own the copy in the news spool directory which you sent to me. But that's it. If I wish to copy it to a disk file, perhaps processing it with uudecode or tar or ZIP or unshar or whatever, I need your permission. This is implicit in most postings of software or binaries to this net. However, not in the case of the shareware. Shareware places explicit limitations on the way you can copy the file. In particular, it says you can copy it only to perform an evaluation, and that use after the evaluation requires a fee. This is my understanding of the law. Copyright law gives the copyright holder complete control over copying of the work, except for archival copies and a number of specific exemptions. The shareware licence is indeed valid. (Some people, oddly enough, have argued that shareware showing up on your machine is unsolicited merchandise -- yours to keep. The file that showed up is indeed yours to keep, but you are not allowed to make further copies or derivative works. If you get an unsolicited book in the mail, it's yours to keep, but you are not allowed to make copies or derivative works) However, this is moot. There are enough enemies of the shareware concept on the net who will ignore the law and say, "You sent it to me, I don't have to pay." It doesn't matter if they are right or wrong, they will do this, and you can't stop them in any convenient way. As such, they have made shareware a non-feasable distribution method on USENET. Too bad, because the grass-roots nature of shareware fits well with the grass-roots nature of usenet, except with those who think it is a sin for programmers to charge for their work. -- Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473
sean@ms.uky.edu (Sean Casey) (04/23/91)
Brad Templeton has a point, however I think it needs to be considered in the light of intent. It can be argued that executing a program is making a copy or a derivative work (it must be copied into ram). The courts, however, have ruled that it is a necessary step in the use of such a program and don't constitute copying per-se. The courts have also modified that view in the more recent context of networking, where it may be possible to load onto more than one cpu at a time, even if only one copy of the software is on disk. If someone sticks shareware on my machine, it can be argued that it is then mine, and that dearchiving and compiling it are *necessary steps* in the use of such software, and that they don't constitute copyright violation or imply any agreement towards a license. I think the courts are no more likely to consider it a copyright infringement than they would if I mailed you something shrink-wrapped for free, and then said don't open it and use it if you're not going to pay. One has to understand that these cases are usually argued in the greater context. The fact that copying occurs does not necessarily mean that there is copyright infringement. Only the court can say it is so. In this case, I feel the courts would decide in favor of the shareware recipient and not the author. I disapprove of the shareware concept because I don't like the idea of someone sending me something unsolicited (or even putting it in a public place where it is known people will copy it) and then telling me what I can and can't do with it. I don't even care about the money part. Sooner or later some organization with deep pockets will take the issue to court, and we'll see. Until then, the issue is not nearly as cut and dried as Brad Templeton would have you believe. My bet is that the courts will rule that such "implied licenses" are invalid (as they have often ruled shrink wrap licenses are invalid) and that dearchiving, compiling, or any other necessary step in its use does not constitute copyright infringement. "Grassroots" profiteering is NOT in the spirit of Usenet. Usenet has been traditionally free. There is no Usenet tradition of binding people to licenses and requiring payment. Traditionally, anything one picked up from Usenet could be used without fear of litigation. I don't want that to change. Sean Casey -- ** Sean Casey <sean@s.ms.uky.edu>
kyle@WENDY-FATE.UU.NET (Kyle Jones) (04/23/91)
Brad Templeton writes: > [...] > There are enough enemies of the shareware concept on > the net who will ignore the law and say, "You sent it to me, I don't have to > pay." It doesn't matter if they are right or wrong, they will do this, and > you can't stop them in any convenient way. As such, they have made shareware > a non-feasable distribution method on USENET. Too bad, because the > grass-roots nature of shareware fits well with the grass-roots nature of > usenet, except with those who think it is a sin for programmers to charge for > their work. It's not _just_ that the "shareware" authors are charging money for their work, it's that they are using the existing USENET transport infrastructure to eliminate much of the distribution, copying and advertising costs of running a software house and yet they still want _more_ money. We all ride the backs of others when we post to USENET, but enough is enough.
tron1@tronsbox.xei.com (Kenneth Jamieson) (04/23/91)
In article <1991Apr22.081417@mccall.com> tp@mccall.com (Terry Poot) writes: >[Lordy, lordy, not again. PLEASE don't start the shareware flames in >news.admin. I'm directing followups to alt.sources.d. I'm sure they don't >want it either, but it fits there better than here, and he did post it to >alt.sources.] Tell me about it ... I am not in the mood for it either. >Shrink-wrap licenses are considered questionable by some, but your notice >has less force. With a shrink-wrap license, it states that by opening the >package you agree to the license. Thus the user has to do something that >indicates agreement with the license (whether that would hold in court >is another debate, please don't address it here). With your software, I had >to do nothing to receive the code. I didn't agree to anything, and you gave >it to me anyway. I'm no lawyer, but I'll bet you couldn't sue me for >violating your license (your copyright is another matter entirely; as I >said in you email, it looked valid and will be respected). Not true. Shareware SOURCE is perfectly valid as far as licensing goes. In order to have the SOFTWARE (binaries) wich will be under licence you have to perform a specific act.... compile them. Thus, (read the text of the amended README) the ACT OF COMPILATION is an acceptance of the licence. Prefectly legal. If you dont want the licence, don't compile it. >attached. I never asked for the present, but that doesn't mean I'll >return it. US law says I can keep it (or so I hear) and you can't charge me >for it. email doesn't get the same coverage by law (yet, go EFF!), but I >think of them that way. Hmm.. I see the point, but the thing I sent you (source) has no fee attached. Ok.. I see this point .. now , doesn't that apply like the storage fee ?? I never asked HIM or his company to do anything for me at all... we have no contract, and I was never notified of his fee's before the bill came. > >BTW, I'm much more likely to pay for software that requests a contribution >IF I find the software useful. This is the proper way to give away software >and get money for it. (The other way is to sell adjunct products, like >support, nice docs, etc.) two points (and as I say , they are moot because I have change the terms......) ... 1) That's what shareware is. You have it, you try it, if you like it , you sned money, if you don't you delete it and that's it. SImple. Or would you intend to keep something you didn't find useful anyway ? 2) But if they post something and say "and if you want support, call 1-000-000-0000 and well sent you a price list" isn't THAT commercial ?? And will the mating call of the wild POLITICALLY ACTIVE SYSADMIN go out ? -- ========[ Xanadu Enterprises Inc. Amiga & Unix Software Development]======= = "I know how you feel, you don't know if you want to hit me or kiss me - = = --- I get a lot of that." Madonna as Breathless Mahoney (Dick Tracy) = =========== Ken Jamieson: uunet!tronsbox.xei.com!tron1 =================== = NONE of the opinions represented here are endorsed by anybody. = = Unix is (tm) AT&T, Amiga is (tm) Commodore Business Machines, and all = = characters from Dick Tracy are (tm) Warner Bros. = ===========================================================================
daveg@misty.sara.fl.us (Dave Goodman) (04/23/91)
In article <1991Apr22.192306.29134@looking.on.ca> brad@looking.on.ca (Brad Templeton) writes: > ... As such, they have made shareware > a non-feasable distribution method on USENET. Too bad, because the > grass-roots nature of shareware fits well with the grass-roots nature of > usenet, except with those who think it is a sin for programmers to charge for > their work. You are confusing the medium with the message. I, for one, have no argument with shareware; I support, nay, applaud the concept. But I see two problems in using usenet to distribute shareware: 1) Shareware *is* a commercial product; using usenet to distribute it is a commercial use of the net. 2) My site is being involuntarily recruited as an *unpaid* distributor for the product. I am out of pocket for the costs of acquiring it (connect time); it uses my facilities and my disk space. All of this to make a buck for someone else! At least the author should offer me a percentage if one of my users registers the package! :-) -- Dave Goodman . . . . . __|__ . . . . . . . . daveg@misty.sara.fl.us . . --o--o--(_)--o--o-- . ....uunet!misty!daveg
peter@ficc.ferranti.com (Peter da Silva) (04/23/91)
In article <sean.672356159@s.ms.uky.edu> sean@ms.uky.edu (Sean Casey) writes: > "Grassroots" profiteering is NOT in the spirit of Usenet. Usenet has > been traditionally free. There is no Usenet tradition of binding > people to licenses and requiring payment. I don't want to start a debate on the relative merits of the GPL and shareware, but the following statement is not entirely true: > Traditionally, anything one > picked up from Usenet could be used without fear of litigation. Under the current version of the GPL, there are tools that have been distributed over Usenet that can not be freely used without fear of litigation. The difference between these programs and shareware has nothing to do with lawsuits and everything to do with money. -- Peter da Silva. `-_-' peter@ferranti.com +1 713 274 5180. 'U` "Have you hugged your wolf today?"
thomson@hub.toronto.edu (Brian Thomson) (04/24/91)
In article <QQXAZ86@xds13.ferranti.com> peter@ficc.ferranti.com (Peter da Silva) writes: >In article <sean.672356159@s.ms.uky.edu> sean@ms.uky.edu (Sean Casey) writes: >> Traditionally, anything one >> picked up from Usenet could be used without fear of litigation. > >Under the current version of the GPL, there are tools that have been >distributed over Usenet that can not be freely used without fear of >litigation. The difference between these programs and shareware has >nothing to do with lawsuits and everything to do with money. But have any competent legal opinions been expressed over the effective enforceability of the GPL? By this I mean the following: * please bear in mind here that I am not a lawyer and mine is not one of the competent legal opinions I talked about * A legal remedy for copyright violation is the payment of damages, and the usual legal principle (as I understand it) for assessment of damages is that the injured party should be put in the same financial position it would have been in had the appropriate per-copy fees been paid. But, since Gnu stuff is distributed for free anyway, the copyright holders do not suffer financially from violations, so the result of such a suit might well be a finding for the complainant in the amount of $0. Although, I suppose that individual might seek an injunction instead, or in addition; I have no feeling for how this would fare, or whether or not costs might be awarded. Whenever the subjects of licensing, restrictions, or copyright surface on the net (and they do so with remarkable frequency), there are those who brandish the courts, and flail away in all directions with rumours and threats of Litigation-with-a-capital-L. I have often wondered whether there is anything substantive to it. I tend to feel that its a bogey, and that the Gnu authors (and perhaps the shareware-on-Usenet authors, too) realistically just have to hope that their audience is made up of decent folks. -- Brian Thomson, CSRI Univ. of Toronto utcsri!uthub!thomson, thomson@hub.toronto.edu
peter@ficc.ferranti.com (Peter da Silva) (04/25/91)
In article <1991Apr24.102055.8340@jarvis.csri.toronto.edu> thomson@hub.toronto.edu (Brian Thomson) writes: > But have any competent legal opinions been expressed over the > effective enforceability of the GPL? I didn't say that this fear of litigation was justified, I was just commenting on its existence. The issue here is not law, but motivation. That's all I'm saying. -- Peter da Silva. `-_-' peter@ferranti.com +1 713 274 5180. 'U` "Have you hugged your wolf today?"
xanthian@zorch.SF-Bay.ORG (Kent Paul Dolan) (04/26/91)
kyle@WENDY-FATE.UU.NET (Kyle Jones) writes: > Brad Templeton writes: [...] >> There are enough enemies of the shareware concept on the net who will >> ignore the law and say, "You sent it to me, I don't have to pay." It >> doesn't matter if they are right or wrong, they will do this, and you >> can't stop them in any convenient way. As such, they have made >> shareware a non-feasable distribution method on USENET. Too bad, >> because the grass-roots nature of shareware fits well with the >> grass-roots nature of usenet, except with those who think it is a sin >> for programmers to charge for their work. It helps to remember when reading this and all of Brad's propaganda that he is infamous for using the net to make money, mostly from other people's work, without compensation to the author, and so of course he is going to promote using the net to make a living as an OK thing to do. It doesn't make him wrong in all cases, but it colors his judgement past the point where he can be trusted as an unbiased critic on this issue. > It's not _just_ that the "shareware" authors are charging money for > their work, it's that they are using the existing USENET transport > infrastructure to eliminate much of the distribution, copying and > advertising costs of running a software house As does any other shareware distribution net, from local BBSs to sneakernet floppy transport and copying to the paid commercial networks that don't charge time charges for uploads. This has nothing to do with USENet's peculiar non-commercial status, it is common to the whole concept of shareware -- putting a $150 commercial product into the end user's hands for the $15 author's royalty by cutting out the packagers and distributors and making the end user pay media costs. This _is_ a benefit to author and end user, though not to the missing middlemen, but only if the fees are actually paid. Otherwise the author gets nothing for the product, and the end user gets no more "cheap but good" software from that author. > and yet they still want _more_ money. And this makes no sense at all, Kyle. Aside from the same waste of bandwidth and operating expenses that any posting accrues, there has been no money involved unless the shareware fee is paid, so it isn't a matter of _more_ money, it's a matter of _any_ money. Lots of folks put tremendous effort into works of the software art; for most it is done out of love of the doing, for many in hopes of glory, for some in hopes of a monetary gain as well. USENet is not the only, nor even an important, network channel for shareware distribution, but it is the most convenient one for many new programmers who have no other way to turn their "not yet commercial grade" skills to potential cash. The reality is that shareware is, for those without a keen business sense, a poor to worthless way to earn money. The few successes are those who have conducted an exquisite balancing act between putting out too little to make their product attractive, and putting out too much to make 'registering" the product worth the cost. Those who resort to threats and bluster, as in the shareware that began this thread, are not the ones who get a steady income from their shareware; that is limited to those who provide additional value in exchange for money received, in the traditional method of market economies. > We all ride the backs of others when we post to USENET, but enough is > enough. Like you, I mostly just write what I write and give it away, as in my most recent effort (townmaze), but I'd like the right to make a living at it if that were possible, without being thought a bad net citizen, and widely excoriated for daring to put "shareware" in the software I post. However, until more than half a dozen people indicate that they are taking what I post and putting it to use, I'm not writing software good (in the sense of attracting users) enough even to be shareware, so it keeps going out free while I practice harder. I think USENet _can_ be used as a shareware distribution channel, although not successfully by those who bluster and threaten, but I also think that if I had a "not quite commercially distributable but still valuable" product that was returning a small return here on USENet, I'd quickly move it to the paid nets where folks addicted in a free ride are less prevalent, and I'd expect to do much better on those other nets. Kent, the man from xanth. <xanthian@Zorch.SF-Bay.ORG> <xanthian@well.sf.ca.us>
woods@robohack.UUCP (Greg A. Woods) (04/29/91)
In article <1991Apr22.192306.29134@looking.on.ca> brad@looking.on.ca (Brad Templeton) writes: > Copyright controls who can copy a file. By posting your message to > USENET, you caused it to be copied to the file /u/news/news/admin/12345 > (or whatever) on my machine. I can't charge you for that, because when > I set up a USENET link I did it aware that people would send files to my > machine in this manner without expectation of paying. > > However, the copyright on your article is still yours. You can put > further restrictions on it. You have, implicitly, given me permission to > read it -- ie. copy it into my newsreader for formatting, etc. > > I also have, under copyright law, the right to make archival copies. > I own the copy in the news spool directory which you sent to me. But that's > it. > > If I wish to copy it to a disk file, perhaps processing it with uudecode or > tar or ZIP or unshar or whatever, I need your permission. This is implicit > in most postings of software or binaries to this net. It's amazing how some people will "bend" (or perhaps "tear, rip, and bash" is more appropriate!) concepts to fit their desired goals. Brad, if you send me a free copy of a book, I can do any number of things with it while steadfastly holding to the Copyright Act. I can move it into another room. I can open it. I can read it. I can write in it. I can tear pages out of it. I can give it away to someone else. I can use it for research purposes. I can quote from it in any work of my own. I can totally destroy it. I can photocopy it and put the original away for safe-keeping. I can give away the photocopy and destroy the original. I can destroy the photocopy and give away the original. Etc., etc., etc.... In fact, this also applies to a book I might find in the dumpster. I will wager a large sum of money that someday in the future we'll see acceptance of the concept that one does not "copy" an electronic work unless the "original" is used in some way contrary to the Copyright Act. IMHO I don't think we are very far from that day right now! Actually, we'll have to do something about the concept of "the original" soon, since there is no such thing with electronic representation. You simply cannot distinguish a copy of an electronic work from the original. > However, not in the case of the shareware. Shareware places explicit > limitations on the way you can copy the file. In particular, it says you > can copy it only to perform an evaluation, and that use after the evaluation > requires a fee. Shareware, as distributed across Usenet, cannot exist in practice, since the "license" it is shipped with is un-enforcable. I would say it is even more useless than the average shrink-wrap "license", since there is no way you can make me read the license before I read the file in my spool directory, thus I can have (i.e. own) a copy before I agree to the license. > This is my understanding of the law. Copyright law gives the copyright holder > complete control over copying of the work, except for archival copies and > a number of specific exemptions. The shareware licence is indeed valid. Yes, but absolutely *NO* control over use or location of the work. Also, be careful when you say "complete control over copying of the work". What this really means is "complete control over profiting from the work". Once something is published, control over use or distribution cannot be done. (Here I mean distribution of the ideas, etc. -- a book may pass from hand-to-hand without restriction by the copyright holder.) -- Greg A. Woods woods@{robohack,gate,eci386,tmsoft,ontmoh}.UUCP +1 416 443-1734 [h] +1 416 595-5425 [w] VE3-TCP Toronto, Ontario; CANADA
mathew@mantis.co.uk (mathew) (04/30/91)
woods@robohack.UUCP (Greg A. Woods) writes: > In article <1991Apr22.192306.29134@looking.on.ca> brad@looking.on.ca (Brad Te > Brad, if you send me a free copy of a book, I can do any number of > things with it while steadfastly holding to the Copyright Act. [...] > it in any work of my own. I can totally destroy it. I can photocopy > it and put the original away for safe-keeping. ^^^^^^^^^^^^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ No you can't. That's breaking copyright law, and is explicitly prohibited in the copyright notices on most books. You know, the bit which says "No part of this publication may be reproduced [...] in any form or by any means [...] photocopying [...] or otherwise." It is true that in practice people tend to turn a blind eye to copies made for personal use. That doesn't mean it's legal, though. And you can make "fair use" copies of sections of the book. But not the whole book. > I can give away the > photocopy and destroy the original. You can't do that, either. "This book is sold subject to the condition that it shall not [...be...] circulated [...] in any form of binding or cover other than that in which it is published." > Shareware, as distributed across Usenet, cannot exist in practice, > since the "license" it is shipped with is un-enforcable. In what sense? It has already been enforced on occasion -- I have read that companies have been forced to pay up for shareware they have copied -- so your claim that it is "unenforcable" is curious. > I would say > it is even more useless than the average shrink-wrap "license", since > there is no way you can make me read the license before I read the > file in my spool directory, thus I can have (i.e. own) a copy before I > agree to the license. You have to own a copy of a textual representation of the file. However, before you get the program you must voluntarily uudecode and uncompress it. In the case of much PC shareware, the uncompress process displays a banner message proclaiming that the program is shareware and telling you to consult the license before running it. > Also, be careful when you say "complete control over copying of the > work". What this really means is "complete control over profiting > from the work". No, because even not-for-profit distribution of the work can be controlled. You can't post copies of Microsoft software to the net just because you're not personally making a profit by doing so; and you can't make copies of the telephone directory and sell them just because the telephone company doesn't try to make a profit on them. > Once something is published, control over use or > distribution cannot be done. Again, this is simply not true. There are many cases of books and albums being recalled after publication because of copyright violation. > (Here I mean distribution of the ideas, > etc. -- a book may pass from hand-to-hand without restriction by the > copyright holder.) For free, yes; you can give a book to a friend. For profit, no; you can't lend a book, hire it out or re-sell it. Not legally, anyway; again, in practise the publishers turn a blind eye to people selling second-hand books for charity, on market stalls, and so on. Are you sure you're up-to-date with your copyright law? Your references to "the Copyright Act" leave me in doubt. mathew [ Disclaimer: I'm not a lawyer ] -- mathew - mathew@mantis.co.uk or mcsun!ukc!ibmpcug!mantis!mathew
a_rubin@dsg4.dse.beckman.com (05/01/91)
In <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: >woods@robohack.UUCP (Greg A. Woods) writes: >> In article <1991Apr22.192306.29134@looking.on.ca> brad@looking.on.ca (Brad Te >> Brad, if you send me a free copy of a book, I can do any number of >> things with it while steadfastly holding to the Copyright Act. [...] >> it in any work of my own. I can totally destroy it. I can photocopy >> it and put the original away for safe-keeping. ^^^^^^^^^^^^^^^ > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ >No you can't. That's breaking copyright law, and is explicitly prohibited in >the copyright notices on most books. You know, the bit which says "No part of >this publication may be reproduced [...] in any form or by any means [...] >photocopying [...] or otherwise." I think you are wrong here. Copyright law protects the CONTENT, not the FORM. I have no idea whether that clause is enforceable. Besides, the clause preports to be a license agreement, rather a copyright condition. [mathew omissions] >And you can make "fair use" copies of sections of the book. But not the whole >book. Actually, not entirely true. If a textbook is out of print, but still under copyright, you can copy it for use as a textbook. I don't know if that is under the "fair use" regulations, or some other. >> I can give away the >> photocopy and destroy the original. >You can't do that, either. "This book is sold subject to the condition that >it shall not [...be...] circulated [...] in any form of binding or cover >other than that in which it is published." You may be right, although that preports to be a license agreement, rather than a copyright condition. >> Shareware, as distributed across Usenet, cannot exist in practice, >> since the "license" it is shipped with is un-enforcable. >In what sense? It has already been enforced on occasion -- I have read that >companies have been forced to pay up for shareware they have copied -- so >your claim that it is "unenforcable" is curious. I don't think it's enforcable either. It may violate company policy at some companies, but it's not enforcable. Do you have specific examples? >> I would say >> it is even more useless than the average shrink-wrap "license", since >> there is no way you can make me read the license before I read the >> file in my spool directory, thus I can have (i.e. own) a copy before I >> agree to the license. >You have to own a copy of a textual representation of the file. However, >before you get the program you must voluntarily uudecode and uncompress it. >In the case of much PC shareware, the uncompress process displays a banner >message proclaiming that the program is shareware and telling you to consult >the license before running it. >> Also, be careful when you say "complete control over copying of the >> work". What this really means is "complete control over profiting >> from the work". [mathew's response omitted] mathew is correct here, although the telephone directory (white pages) has been ruled public domain -- if anyone owns it, it is the individual subscribers. >> Once something is published, control over use or >> distribution cannot be done. >Again, this is simply not true. There are many cases of books and albums >being recalled after publication because of copyright violation. Examples??? Books that were published in violation of copyright can be recalled (after publication), but that's not what you said. >> (Here I mean distribution of the ideas, >> etc. -- a book may pass from hand-to-hand without restriction by the >> copyright holder.) >For free, yes; you can give a book to a friend. For profit, no; you can't >lend a book, hire it out or re-sell it. Not legally, anyway; again, in >practise the publishers turn a blind eye to people selling second-hand books >for charity, on market stalls, and so on. I doubt this very much. (Haven't you heard of used book stores.) I'm not sure you can lend a book for profit, but you can sell it unless there is a VALID LICENSE AGREEMENT prohibiting it. (I suppose that you can lend a book for profit by selling it for $1,000,000.25 with a buyback guarantee of $1,000,000.) It is not prohibited by copyright law. >Are you sure you're up-to-date with your copyright law? Your references to >"the Copyright Act" leave me in doubt. I'm not sure what Greg means by "the Copyright Act", but you don't seem very familiar with copyright law either. >mathew -- I am not a lawyer either -- a_rubin@dsg4.dse.beckman.com My opinions are my own, and do not represent those of my employer.
mathew@mantis.co.uk (mathew) (05/01/91)
a_rubin@dsg4.dse.beckman.com writes in <a_rubin.673041764@dn71>: >In <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: >>woods@robohack.UUCP (Greg A. Woods) writes: >>> [ Concerning a free copy of a book...] I can photocopy >>> it and put the original away for safe-keeping. ^^^^^^^^^^^^^^^ >> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ >>No you can't. That's breaking copyright law, and is explicitly prohibited in >>the copyright notices on most books. You know, the bit which says "No part of >>this publication may be reproduced [...] in any form or by any means [...] >>photocopying [...] or otherwise." > >I think you are wrong here. Copyright law protects the CONTENT, not the FORM. Yes, and you are copying the CONTENT when you photocopy the book. >I have no idea whether that clause is enforceable. Besides, the clause preports >to be a license agreement, rather a copyright condition. No, the prohibition against reproducing the book in any form is a copyright condition; it is merely stated explicitly. >>And you can make "fair use" copies of sections of the book. But not the whole >>book. > >Actually, not entirely true. If a textbook is out of print, but still under >copyright, you can copy it for use as a textbook. I don't know if that is under >the "fair use" regulations, or some other. Oops, yes, I forgot that. Fair use regulations are pretty obscure. >>> I can give away the >>> photocopy and destroy the original. > >>You can't do that, either. "This book is sold subject to the condition that >>it shall not [...be...] circulated [...] in any form of binding or cover >>other than that in which it is published." > >You may be right, although that preports to be a license agreement, >rather than a copyright condition. Ah, but... To photocopy the book you must have the permission of the copyright holder. The notice is merely stating that even if you did have the permission (which you don't), you would not have permission to re-distribute the book in a different form. Copyright notices in books generally spell things out more explicitly than they need to. In the UK, the law has changed quite recently, and they are now even more explicit; they have an extra paragraph saying "The right of the author of this work to be identified as copyright owner is asserted under the 1988 Copyright, Designs and Patents Act" or similar. >>> Shareware, as distributed across Usenet, cannot exist in practice, >>> since the "license" it is shipped with is un-enforcable. >>In what sense? It has already been enforced on occasion -- I have read that >>companies have been forced to pay up for shareware they have copied -- so >>your claim that it is "unenforcable" is curious. > >I don't think it's enforcable either. It may violate company policy at some >companies, but it's not enforcable. Do you have specific examples? Well, according to the Federation Against Software Theft, "exceeding the evaluation period of shareware is also an offence" according to the act mentioned above. [ FAST are sponsored by Ashton-Tate, Lotus and Microsoft, amongst other companies. ] I haven't read the act, but I'm inclined to believe FAST. Of course, it's entirely possible that US law is more lax about copyright. It always has been in the past. [ Miaouw! ] >>> Once something is published, control over use or >>> distribution cannot be done. >>Again, this is simply not true. There are many cases of books and albums >>being recalled after publication because of copyright violation. > >Examples??? Books that were published in violation of copyright can be recalled >(after publication), but that's not what you said. The album "1987: What the Fuck is Going On" by The Jams was recalled after release when it was found to be in breach of copyright. The court ordered that all copies and the master tapes be destroyed. So it isn't just books which can be recalled. >>For free, yes; you can give a book to a friend. For profit, no; you can't >>lend a book, hire it out or re-sell it. Not legally, anyway; again, in >>practise the publishers turn a blind eye to people selling second-hand books >>for charity, on market stalls, and so on. > >I doubt this very much. (Haven't you heard of used book stores.) Yes, but they generally do not sell books which are in print. Not in the UK, anyway. I suspect that this may be another legal difference; the UK still has the Net Price Agreement, whereas the US does not. >>Are you sure you're up-to-date with your copyright law? Your references to >>"the Copyright Act" leave me in doubt. > >I'm not sure what Greg means by "the Copyright Act", but you don't seem very >familiar with copyright law either. Ha! At least I don't confuse form with content, and I have a pretty good idea of legal differences in our respective countries. mathew -- mathew - mathew@mantis.co.uk or mcsun!ukc!ibmpcug!mantis!mathew
peter@ficc.ferranti.com (Peter da Silva) (05/01/91)
In article <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: > ; and you can't make copies of the > telephone directory and sell them just because the telephone company doesn't > try to make a profit on them. Actually, according to a recent court decision, you can. I suppose BT has a different environment to operate in... > For free, yes; you can give a book to a friend. For profit, no; you can't > lend a book, hire it out or re-sell it. Not legally, anyway; again, in > practise the publishers turn a blind eye to people selling second-hand books > for charity, on market stalls, and so on. And how about second hand book stores? Or don't you have those in England? -- Peter da Silva. `-_-' peter@ferranti.com +1 713 274 5180. 'U` "Have you hugged your wolf today?"
dhesi%cirrusl@oliveb.ATC.olivetti.com (Rahul Dhesi) (05/02/91)
In <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes:
You can't do that, either. "This book is sold subject to the
condition that it shall not [...be...] circulated [...] in any
form of binding or cover other than that in which it is
published."
"...And without a similar condition being imposed on any subsequent
purchaser."
My guess is that there were two original reasons for this clause.
(1) To support the industry practice of allowing retailers to return
just the cover page of unsold softcover publications and get a refund
from the publisher. (2) To encourage libraries to buy the hardcover
versions of books rather than buying cheaper paperbacks and adding
their own hard binding.
Reason 2 is probably no longer of much importance -- due to higher
labor costs, buying a paperback and rebinding it is probably about as
costly as buying the hardcover. Reason 1 is probably still valid,
but...
...But I don't think this clause has any legal validity in the USA.
--
Rahul Dhesi <dhesi@cirrus.COM>
UUCP: oliveb!cirrusl!dhesironald@robobar.co.uk (Ronald S H Khoo) (05/02/91)
mathew <mathew@mantis.co.uk> writes: > (Haven't you heard of used book stores.) > Yes, but they generally do not sell books which are in print. Not in the UK, > anyway. Not in Cambridge, maybe, but London's got bookstores that sell used books that are still in print. A SF paperback, used, is about 1 quid or so less than new, typically. I frequent the one in Notting Hill Gate which is between my home and the Tube station. > the UK still has the Net Price Agreement Net Price Agreement has been broken by major bookstores already. I don't expect it to see out this century. -- Ronald Khoo <ronald@robobar.co.uk> +44 81 991 1142 (O) +44 71 229 7741 (H)
josh@happym.WA.COM (Joshua_Putnam) (05/02/91)
In <a_rubin.673041764@dn71> a_rubin@dsg4.dse.beckman.com writes: >In <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: ^^ >>Are you sure you're up-to-date with your copyright law? Your references to >>"the Copyright Act" leave me in doubt. >I'm not sure what Greg means by "the Copyright Act", but you don't seem very >familiar with copyright law either. Looking at the posters' IDs suggests the possibility that both and/or niether are correct, i.e., copyright laws are different in the US and UK. Just because both countries abide by the same treaties does not mean the legislation enforcing those treaties must be identical or fully compatible. (Specifically, used book stores are big business in the US, and I have never seen the "No circulation except in original cover" restriction on US-published books. Is the unenforceability of this clause in the US the reason Penguin books from the UK used to have a note prohibiting distribution to the US?) Just a thought. -- Josh_Putnam@happym.wa.com Happy Man Corp. 206/463-9399 x102 4410 SW Pt. Robinson Rd., Vashon Island, WA 98070-7399 fax x108 We publish SOLID VALUE for the intelligent investor. (NextMail Info. free (sample $20): E-mail patty@happym.wa.com. okay too)
brnstnd@kramden.acf.nyu.edu (Dan Bernstein) (05/02/91)
In article <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: > woods@robohack.UUCP (Greg A. Woods) writes: > > Brad, if you send me a free copy of a book, I can do any number of > > things with it while steadfastly holding to the Copyright Act. [...] > > it in any work of my own. I can totally destroy it. I can photocopy > > it and put the original away for safe-keeping. ^^^^^^^^^^^^^^^ > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > No you can't. That's breaking copyright law, and is explicitly prohibited in > the copyright notices on most books. First, copyright notices never give the authors any rights. They're just notices---you can get more money for a copyright violation if you gave the offender notice of his violation. They carry no other legal weight, are traditionally worded much too strongly (though it's always better safe than sorry), and really don't have anything to do with the issue at hand. Second, whether or not you can photocopy a book and put away the original, the courts have explicitly ruled that you can make various kinds of copies of software without infringing copyright. That includes archival copies. So Greg's point is right even if his analogy is flawed. Finally, I'm not familiar with any court decisions on whether photocopying a book and putting away the original qualifies as fair use. All the fair use guidelines apply, except the usual 2500-word limit; and it's easy to imagine a court allowing this as fair use anyway, since the author isn't losing any money. > > I can give away the > > photocopy and destroy the original. > You can't do that, either. "This book is sold subject to the condition that > it shall not [...be...] circulated [...] in any form of binding or cover > other than that in which it is published." Again, what the copyright notice says has nothing to do with the law. If it was legal to make the photocopy, then it is legal to give it away along with all other existing copies. > > Shareware, as distributed across Usenet, cannot exist in practice, > > since the "license" it is shipped with is un-enforcable. > In what sense? It has already been enforced on occasion -- I have read that > companies have been forced to pay up for shareware they have copied -- so > your claim that it is "unenforcable" is curious. A Federal district court in Louisiana held shrink-wrap licenses to be unenforceable; several lower courts have said the same thing; and the prevailing attitude in the courts seems to be ``no signature means no contract.'' There is no reason to believe that breaking the shrink-wrap forces you into a contract---especially when, as on USENET, there's no shrink-wrap! There are many reasons to believe that the unsolicited gift regulations apply. > In the case of much PC shareware, the uncompress process displays a banner > message proclaiming that the program is shareware and telling you to consult > the license before running it. If you have legally acquired the software, then you may legally unpack it, compile it, and run it, no matter what notices you're served after the fact. There is an entire section of regulations saying that you can do what you have to do to make the software run. > For free, yes; you can give a book to a friend. For profit, no; you can't > lend a book, hire it out or re-sell it. Not legally, anyway; Uh, read the law. You can do what the First Sale doctrine says you can do. The situation is slightly different for you in the UK, but the vast majority of USENET sites are still in the United States. ---Dan
brnstnd@kramden.acf.nyu.edu (Dan Bernstein) (05/02/91)
In article <ass014w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: > No, the prohibition against reproducing the book in any form is a copyright > condition; it is merely stated explicitly. ``Copyright condition''? A copyright is a set of exclusive rights held by the author of a work. He can limit his rights in various ways, for example by giving public notice of a copyright limitation. (A ``waiver'' is a complete limitation of some right.) But he can never gain further rights. Copyright never prevents fair use, or archival copies of software, or things you have to do to software to make it run. Nothing the author does can prevent this. A copyright limitation doesn't add rights. It takes them away. > Well, according to the Federation Against Software Theft, "exceeding the > evaluation period of shareware is also an offence" according to the act > mentioned above. Okay, so the law in Britain is stranger than I thought. Nothing similar is true in the United States. ---Dan
woods@eci386.uucp (Greg A. Woods) (05/03/91)
[ NOTE: I (Greg A. Woods <woods@robohack> & <woods@eci386>) am not a lawyer. ] [ Also note: followup-to misc.legal, which I don't read, so further arguments to me by e-mail please.... ] In article <PBX8114w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: > woods@robohack.UUCP (Greg A. Woods) writes: > > In article <1991Apr22.192306.29134@looking.on.ca> brad@looking.on.ca (Brad Te > > > [stuff about not being allowed to compile a shareware programme > > > distributed via Usenet.] > > > > Brad, if you send me a free copy of a book, I can do any number of > > things with it while steadfastly holding to the Copyright Act. [...] > > it in any work of my own. I can totally destroy it. I can photocopy > > it and put the original away for safe-keeping. ^^^^^^^^^^^^^^^ > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > No you can't. That's breaking copyright law, and is explicitly prohibited in > the copyright notices on most books. You know, the bit which says "No part of > this publication may be reproduced [...] in any form or by any means [...] > photocopying [...] or otherwise." Ooops.... I bent the "book" analogy a bit far there. W.r.t. computer programmes in particular, Section 27 "Infringement of Copyright" of the Copyright Act by which I am governed (and Brad too) reads: 2. Acts not constituting infringement of Copyright. .... (l) the making by a person who owns a copy of a computer programme, which copy is authorized by the owner of the copyright, of a single reproduction of the copy by adapting, modifying, or converting the computer programme or translating it into another computer language if the person proves that: (i) the reproduction is essential for the compatibility of the computer programme with a particular computer, (ii) the reproduction is solely for the person's own use, and (iii) the reproduction is destroyed forthwith when the person ceases to be the owner of the copy of the computer programme; [R.S., c. 10 (4th Supp.), s. 5.] Now, without going into all the sub-references of all other relevant sections, and without spewing forth great mounds of legal verbiage, this means I can compile (and use) a shareware programme delivered to me via Usenet without infringing upon the Copyright of said programme. Mind you, to follow the letter of the law, I would have to remove all intermediate object files upon creation of the final binary programme. Also, this means you cannot make functional changes in a programme without infringing upon the Moral Rights of the copyright holder. To allow modifications, even of freely distributable software, the copyright holder must specifically waive his rights by specifying something to the effect of "modifications are allowed provided they are clearly identified and this notice remains intact". As for retribution, the Act specifically (in S.35(1)) allows for "damages that may be suffered due to infringement, and in addition thereto such part of the profits that the infringer has made from the infringement as the court may decide to be just and proper". Any shareware author who publishes on Usenet would have a hard time justifying to a court any "damages suffered"! As for identifying copies vs. originals, this concept cannot apply to computer programmes, since a copy, by definition, is, in every way, identical to the original. One final sticky point w.r.t. computer programmes, is that they often consist of collections of files. Files, unlike chapters of a book, are distinct entities. I would suggest the practise of placing a copyright notice in every file is essential. I would also suggest that an archive (eg. a shar) is essentially just another way of representing a collection of files, and that it does not in any way construe that the files contained therein are not still seperate entities. The very nature of files and file-systems implies a hierarchical representation (which has nothing to do with directories, etc.) > > I can give away the > > photocopy and destroy the original. > > You can't do that, either. "This book is sold subject to the condition that > it shall not [...be...] circulated [...] in any form of binding or cover > other than that in which it is published." The notice you quote is "bogus" w.r.t. the Copyright Act. One could possible construe that turning the book into a photocopy is changing the physical means by which a work is exposed, but I don't think you'd get too far with a Moral Rights Infringement case. I'm not even sure a License to publish a book can bind the third party purchaser of the book. What does bind the third party is infringement of the Copyright as defined by the Act itself. As for computer programmes, since translation is accepted, I believe my statement to be true. This is similar in concept to vendors including freeware binaries, but not sources, in distributions. (Note I'm *NOT* referring to GNU-ware.) > > Shareware, as distributed across Usenet, cannot exist in practice, > > since the "license" it is shipped with is un-enforceable. > > In what sense? It has already been enforced on occasion -- I have read that > companies have been forced to pay up for shareware they have copied -- so > your claim that it is "unenforcable" is curious. Since posting shareware to Usenet can be deemed as publishing, and since I don't have to agree to any such license before I receive a legal copy, the license is un-enforceable. > > I would say > > it is even more useless than the average shrink-wrap "license", since > > there is no way you can make me read the license before I read the > > file in my spool directory, thus I can have (i.e. own) a copy before I > > agree to the license. > > You have to own a copy of a textual representation of the file. However, > before you get the program you must voluntarily uudecode and uncompress it. > In the case of much PC shareware, the uncompress process displays a banner > message proclaiming that the program is shareware and telling you to consult > the license before running it. We're not talking about PC shareware here, but rather "shareware" as distributed across Usenet... Besides, the rules quoted above make cancel out your argument..... > > Also, be careful when you say "complete control over copying of the > > work". What this really means is "complete control over profiting > > from the work". > > No, because even not-for-profit distribution of the work can be controlled. > You can't post copies of Microsoft software to the net just because you're > not personally making a profit by doing so; and you can't make copies of the > telephone directory and sell them just because the telephone company doesn't > try to make a profit on them. No, not-for-profit distribution cannot easily be controlled, especially the not-for-profit distribution of one legally owned copy of a book or programme. However, the Moral Rights of the author can be enforced, which is how they get you if you post copies of someone's software without the proper rights. The phone-book is another story that others know better the facts on than I. > Are you sure you're up-to-date with your copyright law? Your references to > "the Copyright Act" leave me in doubt. Absolutely.... I have just been re-reading "The Copyright Act and Regulations -- An Office Consolidation -- 1990 Edition", by Butterworths Canada Ltd. It contains the amended text of the Copyright Act (of Canada) [R.S.C. 1985, c. C-42]. I don't claim to be an expert on it though.... Also note I have not delved into any case law that may apply. I can read, and English is my first (and for the most part only) language, and thus legalese is, to me, sort of an oxymoron.... Jargon is jargon, but it's all still English. -- Greg A. Woods woods@{eci386,gate,robohack,ontmoh,tmsoft}.UUCP ECI and UniForum Canada +1-416-443-1734 [h] +1-416-595-5425 [w] VE3TCP Toronto, Ontario CANADA Political speech and writing are largely the defense of the indefensible-ORWELL
mathew@mantis.co.uk (mathew) (05/04/91)
<1991May2.180616.26542@eci386.uucp> woods@eci386.uucp (Greg A. Woods) writes: >[ NOTE: I (Greg A. Woods <woods@robohack> & <woods@eci386>) am not a lawyer. ] [ Nor am I ] >[ Also note: followup-to misc.legal, which I don't read, so further >arguments to me by e-mail please.... ] [ We don't get misc.legal, so I'm prolonging the agony of alt.sources.d a bit... ] >W.r.t. computer programmes in particular, Section 27 "Infringement of >Copyright" of the Copyright Act by which I am governed (and Brad too) >reads: > 2. Acts not constituting infringement of Copyright. > .... > (l) the making by a person who owns a copy of a computer ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > programme, which copy is authorized by the owner of the ^^^^^^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > copyright, of a single reproduction of the copy by adapting, ^^^^^^^^^ > modifying, or converting the computer programme or translating > it into another computer language if the person proves that: > (i) the reproduction is essential for the > compatibility of the computer programme with a > particular computer, > (ii) the reproduction is solely for the person's own > use, and > (iii) the reproduction is destroyed forthwith when the > person ceases to be the owner of the copy of the > computer programme; [R.S., c. 10 (4th Supp.), s. 5.] Now, a person who receives a copy of a shareware program via Usenet probably owns the file. However, I have severe doubts whether he can claim that the copy he owns "is authorized by the owner of the copyright" -- especially when the program explicitly states that it may not be kept beyond the trial period and when he has kept it beyond that time; in other words, when the program explicitly states that his ownership of the copy is NOT authorized by the copyright owner. (That is, he must agree to certain conditions before the copyright owner will authorize his owning the copy.) It is my understanding that the act of voluntarily broadcasting something does not automatically render it the possession of the receiver, and does not imply authorization from the copyright owner of the receiver's copy. Nor does the fact that someone has an illegal copy of some piece of software mean that that person is entitled to keep the copy. We might consider the shareware author as causing his copyright to be broken by sending his program out over Usenet; I do not believe, however, that those people owning the resulting illegal copies would be legally entitled to keep them. It is possible that by causing his copyright to be broken, the shareware author could be considered to have permanently waived his rights to control copying of the software -- is this the case? I do not believe that it is. For example, when you broadcast a TV program, the copy a person receives is not the property of that person; he is not allowed to tape it and keep the tape copy indefinitely, nor to sell the tape copy to other people. Similarly, I believe that if you manage to receive cable or satellite TV broadcasts which you have not paid for, you are *not* the owner of the programmes received, nor are any copies of those programs which you keep authorized. This is in spite of the fact that the cable TV company *knows* that there exist people who will obtain copies of their programmes without being authorized by them to do so. So it is *possible* that, by broadcasting his program over Usenet in such a way that he *knows* copies will end up on many machines, the author is in some way implicitly waiving his rights to retain copyright on those copies. But I doubt it. And if he has copyright, he can stop you from copying the program further. He can try to get the original copyright breach put right. Retroactively, if need be. (The original breach being the one by which you obtained your copy without agreeing to the license agreements. Yes, he caused it, but I believe he can still try to get it put right.) Part of the problem, once again, is whether Usenet counts as a broadcasting medium, a set of publishing companies, or some combination of the two. >Now, without going into all the sub-references of all other relevant >sections, and without spewing forth great mounds of legal verbiage, >this means I can compile (and use) a shareware programme delivered to >me via Usenet without infringing upon the Copyright of said >programme. Only if you own the program and the ownership is authorized by the copyright owner. And in the case of shareware, ownership in general is explicitly NOT authorized by the copyright owner. [ Looking at the above, it's a bit of a mess. It seems pretty clear to me, but it's last thing on Friday. I think I'll go and check some books on copyright law again tomorrow. In the mean time... ] Let's try to throw aside some of the legal uncertainty. I originally stepped into the debate because I want to see shareware on the net, and I want to be able to post things which I write without losing copyright control over them. I propose that a poll be taken to determine how many Usenet readers object to shareware and copyrighted software, and how many do not. We should then separate the PD-only people from the shareware-copyrighted-and-PD people, with the largest side getting to keep the existing named newsgroups and the other side having to start new groups. Accepting a feed of a shareware-or-copyrighted sources / binaries group would then be considered an informal agreement to either obey the license agreement / copyright restrictions for each program or delete that program. I suspect that the PD-only people would end up with a lot less software coming their way (no GNUware for starters!), but that's their choice. Comments? [ I suppose I'd better justify my lumping shareware with copyrighted GNU-type software. In both cases, the legalese is a copyright notice saying "This program may be copied only if you obey the following conditions:"; the difference is what the conditions are. Just as you do not agree to shareware conditions before receiving shareware, so you do not sign any contract with the FSF before receiving GNUware. Those who refuse to obey notices on shareware presumably feel no innate compulsion to obey similar notices on GNUware. ] [ It will probably be time to cross-post this thread to gnu.misc.discuss soon. ] mathew -- mathew - mathew@mantis.co.uk or mcsun!ukc!ibmpcug!mantis!mathew
gardner@ux1.cso.uiuc.edu (Mike Gardner) (05/05/91)
mathew@mantis.co.uk (mathew) writes: >For example, when you broadcast a TV program, the copy a person receives is >not the property of that person; he is not allowed to tape it and keep the >tape copy indefinitely, nor to sell the tape copy to other people. I agree with your direction, but your examles are faulty. The courts have ruled that "time-shifting" with your VCR is legal, and there is no time limit on how long you can keep the tapes. You cannot however, sell them, copy them or otherwise make money off of them. Maybe a better analogy would be people sending things to me in the mail unsolicited. If I get something in the mail without requesting it, then it is MINE, free. Does the process of connecting to Usenet and receiving these newsfiles constitute solicitation of material? If so, then you must abide by the requirements of the sender. If not, then it's yours to keep, but not sell, duplicate etc. >Part of the problem, once again, is whether Usenet counts as a broadcasting >medium, a set of publishing companies, or some combination of the two. Many news organizations deliver copy through a very similar arrangment, yet retain copywrights on the material. >Let's try to throw aside some of the legal uncertainty. I originally stepped >into the debate because I want to see shareware on the net, and I want to be >able to post things which I write without losing copyright control over them. For sure! >I propose that a poll be taken to determine how many Usenet readers object to >shareware and copyrighted software, and how many do not. We should then >separate the PD-only people from the shareware-copyrighted-and-PD people, >with the largest side getting to keep the existing named newsgroups and the >other side having to start new groups. >Accepting a feed of a shareware-or-copyrighted sources / binaries group would >then be considered an informal agreement to either obey the license >agreement / copyright restrictions for each program or delete that program. Just doit! mgg
thomson@hub.toronto.edu (Brian Thomson) (05/06/91)
In article <4RuD24w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: ><1991May2.180616.26542@eci386.uucp> woods@eci386.uucp (Greg A. Woods) writes: >>W.r.t. computer programmes in particular, Section 27 "Infringement of >>Copyright" of the Copyright Act by which I am governed (and Brad too) >>reads: >> 2. Acts not constituting infringement of Copyright. >> .... >> (l) the making by a person who owns a copy of a computer > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ >> programme, which copy is authorized by the owner of the > ^^^^^^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ >> copyright, of a single reproduction of the copy by adapting, > ^^^^^^^^^ >> modifying, or converting the computer programme or translating >> it into another computer language if the person proves that: >> (i) the reproduction is essential for the >> compatibility of the computer programme with a >> particular computer, >> (ii) the reproduction is solely for the person's own >> use, and >> (iii) the reproduction is destroyed forthwith when the >> person ceases to be the owner of the copy of the >> computer programme; [R.S., c. 10 (4th Supp.), s. 5.] > > >However, I have severe doubts whether he can claim that the copy he owns "is >authorized by the owner of the copyright" -- especially when the program >explicitly states that it may not be kept beyond the trial period and when he >has kept it beyond that time; in other words, when the program explicitly >states that his ownership of the copy is NOT authorized by the copyright >owner. (That is, he must agree to certain conditions before the copyright >owner will authorize his owning the copy.) > I think you have misread the statute. It does not require that "ownership of the copy" be authorized, but that the copy be authorized. That is, the copy must have been created with the consent of the copyright holder. Once it is created, the copyright holder has no special rights to dictate who may or may not own the copy. Copyright does not give the holder control over who owns the copies, just over their creation. -- Brian Thomson, CSRI Univ. of Toronto utcsri!uthub!thomson, thomson@hub.toronto.edu
woods@eci386.uucp (Greg A. Woods) (05/07/91)
[ Oh well, the discussion continues.... Please, anyone thinking of responding, read the relevant laws first. I'm basing this discussion on the Canadian Copyright Act, since that is what governs me, and Mr. Brad Templeton, who started this whole thing! :-) ] In article <4RuD24w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: > Now, a person who receives a copy of a shareware program via Usenet probably > owns the file. > > However, I have severe doubts whether he can claim that the copy he owns "is > authorized by the owner of the copyright" -- especially when the program > explicitly states that it may not be kept beyond the trial period and when he > has kept it beyond that time; in other words, when the program explicitly > states that his ownership of the copy is NOT authorized by the copyright > owner. (That is, he must agree to certain conditions before the copyright > owner will authorize his owning the copy.) > > It is my understanding that the act of voluntarily broadcasting something > does not automatically render it the possession of the receiver, and does not > imply authorization from the copyright owner of the receiver's copy. It is very clear in the Canadian Copyright Act that broadcasting has a very narrow definition w.r.t. copyrights, and almost certainly Usenet is not a broadcast medium (notwithstanding any case law which may have come to pass). By implication, posting to Usenet is equivalent to publishing, thus once a copy of a programme has come into someone's possession via Usenet as the distribution mechanism, that person has become the legal owner of the copy he holds, i.e. "is authorized by the owner of the copyright" to have a copy of the programme, and is thus entitled to do anything to this copy, within the bounds of the Copyright Act. What the programme, or any attached notice, says or does not say is not relevant. If the copyright holder does not wish copies to be distributed beyond his control, he must either explicitly restrict such copying (by enforcing his copyright), or explicitly license each copy. Shareware tries to put a minor loophole in this by having the licence say that the authorized owner of a copy is allowed to distribute further copies, provided he executes the licence with each new owner. The licensee's are usually also required to either pay some fee to the copyright holder, or to destroy their copies after some given period. The licensee's are usually also restricted from profiting from such transactions. > Nor does the fact that someone has an illegal copy of some piece of software > mean that that person is entitled to keep the copy. We might consider the > shareware author as causing his copyright to be broken by sending his program > out over Usenet; I do not believe, however, that those people owning the > resulting illegal copies would be legally entitled to keep them. It is > possible that by causing his copyright to be broken, the shareware author > could be considered to have permanently waived his rights to control copying > of the software -- is this the case? I do not believe that it is. Ignoring the fact that a copy from Usenet is not an illegal copy... It is the responsibility of the copyright holder to take action to retrieve any possible illegal copies of his work. No, the copyright is not necessarily broken by distribution of the work over Usenet. The resulting copies are *not* illegal either. Shareware, by definition, depends upon a licence. Such a licence cannot be upheld when the copies are distributed via Usenet. One point to note however is that given the tenuous definition of Usenet, particularly of the size and scope of Usenet, software distributed via Usenet can probably be considered to automatically have something like the following waiver attached: "Further copying is allowed, provided this notice remains intact." I.e. the copyright holder is unlikely to be able to enforce his copyright to the extent that further original copies, beyond the normal distribution of Usenet are not allowed. Especially considering the function of automatic archive sites.... > For example, when you broadcast a TV program, the copy a person receives is > not the property of that person; he is not allowed to tape it and keep the > tape copy indefinitely, nor to sell the tape copy to other people. As has been mentioned, at least in Canada and the U.S.A., the a copy of a TV programme as recorded by a private individual *is* permitted to be kept indefinitely (and can be viewed as often as desired, but cannot be viewed for profit). > So it is *possible* that, by broadcasting his program over Usenet in such a > way that he *knows* copies will end up on many machines, the author is in > some way implicitly waiving his rights to retain copyright on those copies. > But I doubt it. No, he is not waiving his rights to his copyright, but rather voiding any licence he may have hoped to enforce. Distribution over Usenet is not broadcasting by definition (notwithstanding any case law which may have come to pass). > And if he has copyright, he can stop you from copying the program further. He > can try to get the original copyright breach put right. Retroactively, if > need be. (The original breach being the one by which you obtained your copy > without agreeing to the license agreements. Yes, he caused it, but I believe > he can still try to get it put right.) Yes, the copyright does indeed remain. No, any licence is void. > Part of the problem, once again, is whether Usenet counts as a broadcasting > medium, a set of publishing companies, or some combination of the two. No, Usenet does not count as a broadcast medium within the definitions of the Canadian Copyright Act (notwithstanding any case law which may have come to pass). > Let's try to throw aside some of the legal uncertainty. I originally stepped > into the debate because I want to see shareware on the net, and I want to be > able to post things which I write without losing copyright control over them. I don't care if shareware is distributed via Usenet or not. All I'm trying to say is that you (or the shareware licence holder) best not expect any money from Usenet users, since there is no way they can enforce their licence, and if my earlier assertion proved true, they could not completely control further copying either. > I propose that a poll be taken to determine how many Usenet readers object to > shareware and copyrighted software, and how many do not. We should then > separate the PD-only people from the shareware-copyrighted-and-PD people, > with the largest side getting to keep the existing named newsgroups and the > other side having to start new groups. A I said, I don't care about shareware.... As for software protected by copyright, most of what comes over Usenet is, and probably always will be, at least to some extent, and I'm all for it. The PD-only people have always been in a void [:-)]. As for creating, splitting, separating, etc. newsgroups, forget it. Sure you can create an alt.sources.pd, or an alt.sources.shareware, but some fat lot of good it will do. The existing newsgroups are well accepted. > [ I suppose I'd better justify my lumping shareware with copyrighted GNU-type > software. In both cases, the legalese is a copyright notice saying "This > program may be copied only if you obey the following conditions:"; the > difference is what the conditions are. As someone eloquently said (and I paraphrase much less eloquently) -- You can't further restrict other's rights with a copyright, beyond what copyright legislation allows for; rather you can only waive your own rights as copyright holder, eg. by saying such things as "Further copying is allowed, provided this notice remains intact, and all changes are clearly marked." I won't even touch the relative merits of the GNU Copyright/Licence! -- Greg A. Woods woods@{eci386,gate,robohack,ontmoh,tmsoft}.UUCP ECI and UniForum Canada +1-416-443-1734 [h] +1-416-595-5425 [w] VE3TCP Toronto, Ontario CANADA Political speech and writing are largely the defense of the indefensible-ORWELL
brnstnd@kramden.acf.nyu.edu (Dan Bernstein) (05/07/91)
In article <1991May7.000512.1961@eci386.uucp> woods@eci386.UUCP (Greg A. Woods) writes: > Shareware, by definition, depends upon a licence. Not necessarily. ``This is Fubar version 6.66, Copyright 1991, Me. I own a copyright on Fubar. This means you basically can't make copies of it without getting my permission first. Well, I give you permission to make one copy and give it to someone else, PROVIDED that you first send a $15.00 check or money order, made payable to Fubar Inc., by registered U.S. or international mail to Natas, 666 Penn. Ave. NW, Washington, DC 20666. Unless you indicate otherwise, I'll send you manuals and update notices after I get your check. Thanks. Once you own a legal copy, by the way, you can use it for as long as you want. You have to send me one $15.00 check for each copy you give away, though. (If you're smart, you'll get the money from each recipient.)'' That's not a license. It's just a copyright limitation, and it's legally sound. I'd still say that Fubar 6.66 is shareware. ---Dan
) (05/07/91)
gardner@ux1.cso.uiuc.edu (Mike Gardner) writes: > I agree with your direction, but your examles are faulty. The courts have > ruled that "time-shifting" with your VCR is legal, and there is no time > limit on how long you can keep the tapes. In America, perhaps. Yet another transatlantic legal difference. > Maybe a better analogy would be people sending things to me in the mail > unsolicited. If I get something in the mail without requesting it, then > it is MINE, free. Does the process of connecting to Usenet and receiving > these newsfiles constitute solicitation of material? If so, then you > must abide by the requirements of the sender. If not, then it's yours to > keep, but not sell, duplicate etc. I think that's fair enough; and I would argue that connecting to Usenet DOES constitute solicitation of material, since you must explicitly request from your feed site that the material in any given newsgroup be sent to you. mathew
) (05/07/91)
thomson@hub.toronto.edu (Brian Thomson) writes: > In article <4RuD24w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: > ><1991May2.180616.26542@eci386.uucp> woods@eci386.uucp (Greg A. Woods) writes > >> 2. Acts not constituting infringement of Copyright. > >> .... > >> (l) the making by a person who owns a copy of a computer > >> programme, which copy is authorized by the owner of the > >> copyright, [...] [...] > I think you have misread the statute. > It does not require that "ownership of the copy" be authorized, but that > the copy be authorized. > That is, the copy must have been created with the consent of the copyright > holder. Right. And the copyright holder is stating that he does not give consent to copies being made unless the person to whom the copies are given agrees to abide by the conditions of ownership. mathew
gdtltr@brahms.udel.edu (root@research.bdi.com (Systems Research Supervisor)) (05/08/91)
In article <qLTk212w164w@mantis.co.uk> mathew@mantis.co.uk (CNEWS MUST DIE!) writes: => =>Right. And the copyright holder is stating that he does not give consent to =>copies being made unless the person to whom the copies are given agrees to =>abide by the conditions of ownership. => But if a copyright holder posts the copyrighted work, he implicitly authorizes copies to be made on every site receiving the particular group, given the automated nature of news feeds. Further copying may be restricted by the terms of the copyright, but it can't dictate the fair use of the implicitly authorized copies. This doesn't deal with the issue of having a third party post the work. It might be wise to include a clause in the copyright notice preventing broadcast (implicit or explicit) of the work. Disclaimer: This isn't law (to the best of my knowledge), but I think my statements are sensible, and reflect what I think the law should be. As it is, I think I like being a hacker more than I would like being a lawyer. => =>mathew => Gary Duzan Time Lord Third Regeneration -- gdtltr@brahms.udel.edu _o_ ---------------------- _o_ [|o o|] Two CPU's are better than one; N CPU's would be real nice. [|o o|] |_o_| Disclaimer: I AM Brain Dead Innovations, Inc. |_o_|
thomson@hub.toronto.edu (Brian Thomson) (05/08/91)
One more round! In article <qLTk212w164w@mantis.co.uk> mathew@mantis.co.uk (CNEWS MUST DIE!) writes: >thomson@hub.toronto.edu (Brian Thomson) writes: >> In article <4RuD24w164w@mantis.co.uk> mathew@mantis.co.uk (mathew) writes: >> ><1991May2.180616.26542@eci386.uucp> woods@eci386.uucp (Greg A. Woods) writes >> >> 2. Acts not constituting infringement of Copyright. >> >> .... >> >> (l) the making by a person who owns a copy of a computer >> >> programme, which copy is authorized by the owner of the >> >> copyright, [...] >[...] >> I think you have misread the statute. >> It does not require that "ownership of the copy" be authorized, but that >> the copy be authorized. >> That is, the copy must have been created with the consent of the copyright >> holder. > >Right. And the copyright holder is stating that he does not give consent to >copies being made unless the person to whom the copies are given agrees to >abide by the conditions of ownership. Except that, by the time the copy is received, the copy has already been made. Posting something to the network is like putting a sheet of paper in a photocopier and pushing the "ON" button. If the person who posts does so with the consent of the copyright holder, then the copy is authorized. Once that question is settled, the copyright holder has no more control (none based on copyright, at least) on what happens to the copy, except regarding its further duplication. [of course, this may differ in the UK] I have no idea of the effect of arbitrary conditions on that authorization, but I strongly suspect that, if copyright is the basis for enforcing such conditions, the copyright holder would have a case against the poster rather than the eventual possessor. Confusion arises as a result of the common practice of following a copyright notice with a statement that "Use of this product is hereby permitted under the following conditions ...", which gives the impression that the copyright and usage conditions are somehow related. I do not believe they are. But then ... I am not a lawyer and mine is not a competent legal opinion. -- Brian Thomson, CSRI Univ. of Toronto utcsri!uthub!thomson, thomson@hub.toronto.edu
) (05/08/91)
mathew@mantis.co.uk (CNEWS MUST DIE!) writes: >I think that's fair enough; and I would argue that connecting to Usenet DOES >constitute solicitation of material, since you must explicitly request from >your feed site that the material in any given newsgroup be sent to you. Yet another transatlantic difference. Over here, it is not uncommon for feed sites to offer new newsgroups until you ask them to shut you off. But then again, we don't have the UnKindNET telling us what to do...
brnstnd@kramden.acf.nyu.edu (Dan Bernstein) (05/08/91)
In article <qeTk211w164w@mantis.co.uk> mathew@mantis.co.uk (CNEWS MUST DIE!) writes: > I would argue that connecting to Usenet DOES > constitute solicitation of material, since you must explicitly request from > your feed site that the material in any given newsgroup be sent to you. Getting a USENET feed is just like getting a mailbox. You have not solicited the individual items that come to your mailbox, and if someone decides to send you junk mail, it's yours to keep. ---Dan
) (05/08/91)
thomson@hub.toronto.edu (Brian Thomson) writes: > If the person who posts > does so with the consent of the copyright holder, then the copy is > authorized. Once that question is settled, the copyright holder has no > more control (none based on copyright, at least) on what happens to the > copy, except regarding its further duplication. [of course, this may > differ in the UK] Yes, but does uudecoding and uncompressing count as further duplication? You have, after all, made an extra copy of the program by doing so. mathew
) (05/08/91)
gdtltr@brahms.udel.edu (root@research.bdi.com (Systems Research Supervisor)) writes: > But if a copyright holder posts the copyrighted work, he implicitly > authorizes copies to be made on every site receiving the particular > group, given the automated nature of news feeds. Further copying may > be restricted by the terms of the copyright, but it can't dictate the > fair use of the implicitly authorized copies. Right. But what is "fair use" for a news article? Reading it, yes; but decoding it to obtain a program? mathew
igb@fulcrum.bt.co.uk (Ian G Batten) (05/08/91)
In article <3460@ksr.com> jfw@ksr.com (CNEWS MUST LIVE!) writes: > mathew@mantis.co.uk (CNEWS MUST DIE!) writes: > >I think that's fair enough; and I would argue that connecting to Usenet DOES > >constitute solicitation of material, since you must explicitly request from > >your feed site that the material in any given newsgroup be sent to you. > > Yet another transatlantic difference. Over here, it is not uncommon for > feed sites to offer new newsgroups until you ask them to shut you off. > But then again, we don't have the UnKindNET telling us what to do... Rubbish. If you have a feed which contains !whatever for the groups you DON'T want, then you will get new groups; if you have a feed which just lists the groups you want, you won't. Simple. No transatlantic differences. Nothing whatsoever to do with uknet. ian
woods@eci386.uucp (Greg A. Woods) (05/09/91)
In article <6579:May706:09:5591@kramden.acf.nyu.edu> brnstnd@kramden.acf.nyu.edu (Dan Bernstein) writes: > In article <1991May7.000512.1961@eci386.uucp> woods@eci386.UUCP (Greg A. Woods) writes: > > Shareware, by definition, depends upon a licence. > > Not necessarily. >[.... a copyright notice ....] > That's not a license. It's just a copyright limitation, and it's legally > sound. I'd still say that Fubar 6.66 is shareware. Hm... interesting point. Your wording isn't all that great, and probably contains a few loopholes, but I get the idea! :-) However, if you (the copyright holder of Fubar 6.66) were to post Fubar 6.66 to Usenet, I'd say you wouldn't be able to uphold your copyright. This is the point I was essentially trying to make. -- Greg A. Woods woods@{eci386,gate,robohack,ontmoh,tmsoft}.UUCP ECI and UniForum Canada +1-416-443-1734 [h] +1-416-595-5425 [w] VE3TCP Toronto, Ontario CANADA Political speech and writing are largely the defense of the indefensible-ORWELL
peltz@cerl.uiuc.edu (Steve Peltz) (05/09/91)
In article <6579:May706:09:5591@kramden.acf.nyu.edu> brnstnd@kramden.acf.nyu.edu (Dan Bernstein) writes: >In article <1991May7.000512.1961@eci386.uucp> woods@eci386.UUCP (Greg A. Woods) writes: >> Shareware, by definition, depends upon a licence. > >Not necessarily. [fine example of copyright limitations omitted] >That's not a license. It's just a copyright limitation, and it's legally >sound. I'd still say that Fubar 6.66 is shareware. I agree that what you wrote is completely valid. I'd argue that it doesn't match the goals of Shareware at all. I, Joe User, have no incentive whatsoever to pass your program on to anyone else; not only that, but Jack User, who wants a copy, won't get an "evaluation" copy to try out without paying for it. The whole idea of shareware is to distribute the program as far and wide as possible, and people who want to keep it pay for it. If they don't want to keep it, they are still encouraged to give plenty of copies to friends. Although a wonderful and grand idea, I don't think it can be made legally enforceable, at least using the current copyright laws. Since you own a legal copy of the program, you have no legal obligation to destroy it just because a time limit ran out, and it is not in the author's best interest to keep you from making a copy of the program for someone else (else that other person never gets a chance to see the program, and maybe pay for it). There is no way, under the copyright laws, to say "you may not RECEIVE a copy of this program", it can only prevent you from MAKING a copy. Once you've legally made a copy (other than the archival type copy that doesn't require permission from the author), you can pass that copy to anyone you want.