Charging the net...

[Greg A. Woods]

[ 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 at mantis.co.uk> mathew at 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