Re: A time for action...

[Rubywand <rubywand@swbell.net>]

Frank Townsend writes ...
>
> Rubywand wrote in message <3980831A.68FA4F6E@swbell.net>...
> 
> >> Further, a few weeks ago, a legal argument was made, citing case law, as
> >> to how, if you own a machine, using the firmware isn't a violation of
> >> copyright law. Ruby knows about and has ignored that post - it undermines
> >> his wish to paint "vogons" as hypocrites.
> > ....
> >
> >     Missed that posting. Evidently, it was by someone whose messages
> >generally get ignored due to a long history of posting garbage
 ....
 
> Egads!  I am crushed!!!
> 
> I don't have a long history of posting *anything* and my garbage is *good*
> garbage ;-))
> 
> QC10 drivers, anyone (tap tap tap tap ;-)
> 

     Come to think of it, some of QC's postings are kind of fun to read.

     Getting back to the issue ... found your posting-- the one which Roy seems
to think establishes the right of a machine owner to transfer and use the ROM
code on an emulator. 

     First, you cite the creation of Section 117 and summarize it as follows:

> Also, note the following from SEGA LTD. v. ACCOLADE (1992)
> 
> "Section 117 was enacted on the recommendation of CONTU, which noted that
> "[b]ecause the placement of any copyrighted work into a computer is the
> preparation of a copy [since the program is loaded into the computer's
> memory], the law should provide that persons in rightful possession of
> copies of programs be able to use them freely without fear of exposure to
> copyright liability."

     Although details of SEGA LTD. v. ACCOLADE (1992) are not supplied, it seems
fair to suppose that one company was suing another (for whatever reason) using
the argument that a copy of the software in memory (i.e. the in-RAM "copy")
violated a copyright.

     My guess is that some piece of Accolade software designed to run on a SEGA
machine moved sections of SEGA ROM into RAM for purposes of enhancing performance
of a game. SEGA claimed it should be paid for this use of its ROM code and
Accolade refused. 

     Section 117 clearly relates to a use of the software ("in rightful
possession") which is reasonable and necessary in order order to enjoy its
intended functioning. All the Section appears to do is eliminate reasonable uses
of a machine's ROM code within the machine from the class of actions regarded as
copyright violations.


     The above explains the judge's ruling in the next case-- the one you say
shows that users have a right to transfer and use Apple II ROMs in emulators:

> It may be of interest to read the 9th Circuit case SONY v CONNECTIX at
> 
> http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=docket&no=9915
> 852
> 
> In this case, Connectix copied the BIOS code for the Sony PlayStation to use
> in an emulator to observe the workings of the program.  Although Connectix
> argued (as I have) that copying the ROM code is protected by section 117,
> the court never relied on that rationale, instead ruling that the copying of
> the ROM program into RAM was a protected fair use!!

     Naturally, the judge did not accept the Section 117 argument. Section 117
relates to normal, intended use of the machine in which the ROM is located.
PlayStation's ROM is intended for running PlayStation software on a PlayStation.
The Connectrix application has nothing to do with or impact upon running
PlayStation software on the Playstation.

     You note that, even so, the judge ruled for Connectrix, but on the basis of
'Fair Use'. This is hardly a cause for rejoicing. In fact, especially given the
attempt to use Section 117, it is a disaster for your side:

o- It confirms the within-machine interpretation of Section 117.

o- It strongly implies that a correct application of the copied ROM code on a
non-PlayStation machine must fall under Fair Use limitations.

     The Connectrix application allows designers to study program operation
parameters-- e.g. use of stacks, RAM requirements, sound interface register
values, etc.. It does _not_ allow game players to substitute an emulator using
PlayStation ROM code to run PlayStation software.


     The IIgs ROM is part of an Apple IIgs computer. You can use the ROM code as
necessary to run programs on the IIgs. There is no need to transfer IIgs ROM code
to a Mac or PC for use with an emulator in order to use IIgs software on the
IIgs.

     Clearly, owning a IIgs does not convey a right to transfer IIgs ROM code to
another machine, let along to use the ROM code with an emulator for the purpose
of running IIgs software.


     Besides legal arguments, there is 'common sense'. Were the above sort of ROM
transfer not a copyright violation, what would keep a Mac clone maker from wiping
Apple out of the important business and institutional markets?

     Suppose the Mork is a faster, cheaper Mac clone which guarantees 100% Mac
compatibility once you connect a handy cable and suck over the Mac's ROM code to
a flash ROM. A large business or university could buy one genuine Mac and, then,
save a fortune by going with the faster, cheaper Morks.

     Aside from the above (supposedly lawful) situation, there would be thousands
of individual users buying Morks and getting the Mac ROM code from friends or
warez sites. Apple Computer would soon be out of business.

     
     Of course, it has been nearly 15 years since release of the IIgs. The ROM
code is generally believed to have no significant commercial value; and, Apple
does not appear to mind having it transferred, downloaded from the net, etc. and
used on emulators running on Macs and PC's. Nevertheless, such transfers and uses
are copyright violations.


    _IF_, against all logic and common sense, one insists that any technical
copyright violation is Evil, then, one should not promote such violations. One
should not, on the one hand, condemn users who download ancient, zero-value
software as "pirates" purely because copyrights are violated; while, on the other
hand, one promotes copyright violations.



Rubywand