Charging the net....

[Greg A. Woods]

[ NOTE: I (Greg A. Woods <woods at robohack> & <woods at 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 at mantis.co.uk> mathew at mantis.co.uk (mathew) writes:
> woods at robohack.UUCP (Greg A. Woods) writes:
> > In article <1991Apr22.192306.29134 at looking.on.ca> brad at 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