Charging the net...

[mathew]

<1991May2.180616.26542 at eci386.uucp> woods at eci386.uucp (Greg A. Woods) writes:
>[ NOTE: I (Greg A. Woods <woods at robohack> & <woods at 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 at mantis.co.uk or mcsun!ukc!ibmpcug!mantis!mathew