Re: Moderation

[Rubywand <rubywand@swbell.net>]

Frank Townsend writes ...
>
> Rubywand wrote in message <39808809.FF9989DB@swbell.net>...
> 
> >LOL! the "act" can no longer be prosecuted because it does not violate any
> >statutory prohibition. (It does not break any laws.)
> >
> >     You have destroyed vogon vigilante claims about "illegality".
>
> Not exactly.
> 
> Certain violations of the statute are not considered criminal.
> 
> Illegal (in violation of the statute's exclusive grant of rights), yes;
> criminal, no.
>
> Criminality = illegality, but illegality does not necessarily = criminality.
> 

     It seems correct to restrict use of "illegal" to acts which violate a
statute. That is, if an action does not 'break a law', it is not an illegal
action.

     That "illegal" tends to be linked to copyright violations merely reflects
everyday reality. Reasonable people do not normally become upset about technical
violations of copyrights having no commercial value. The violations people talk
about do, typically, involve a substantial real loss. "Illegal" is correct
because a law is violated.

     This is not the case for old software with no commercial value. Violating
these copyrights does not break any of the laws which apply to property having
real commercial value. What you have is a simple copyright violation.

     The fact that a rights owner could take you to civil court and attempt to
collect some kind of damages for violating a zero-value copyright simply reflects
the fact of copy rights ownership. It says nothing about legality one way or the
other. People can sue for whatever reasons they please; and, people get sued all
the time for actions which are not illegal.


     If you doubt the need to insist upon correct usage of "illegal", consider
the typical argument of those who call users "pirates" when they download ancient
zero-value commercial Apple II software:

Vogon-type: Downloading the software is ~WRONG~.

User: Why?
Vogon-type: Because it is a Copyright Violation!

User: So?
Vogon-type: It is Illegal!! You are Breaking the LAW!!!


     So, these people seem to agree with the usual understanding of "illegal".
(Illegal activity = Breaking a Law.)  Yet, if pressed to identify the law being
broken, the best they can manage is pointing to the simple grant of exclusive
copy rights ownership:

>>
U.S. Code : Title 17, Section 106:

    Subject to sections 107 through 120, the owner of copyright under
    this title has the exclusive rights to do and to authorize any of the
    following:

    (1) to reproduce the copyrighted work in copies or phonorecords;
    (2) to prepare derivative works based upon the copyrighted work;
    (3) to distribute copies or phonorecords of the copyrighted
        work to the public by sale or other transfer of ownership, or by
        rental, lease, or lending;
    (4) in the case of literary, musical, dramatic, and
        choreographic works, pantomimes, and motion pictures and other
        audiovisual works, to perform the copyrighted work publicly;
    (5) in the case of literary, musical, dramatic, and
        choreographic works, pantomimes, and pictorial, graphic, or
        sculptural works, including the individual images of a motion
        picture or other audiovisual work, to display the copyrighted
        work publicly; and
    (6) in the case of sound recordings, to perform the copyrighted
        work publicly by means of a digital audio transmission.
<<
(Thanks to Michael Murray for digging up this and the next citation.)

Indeed, you do have a grant of exclusive copy rights ownership; but, that's it.
The closest thing you have to a prohibition on copying by others is the implied
threat of a civil lawsuit; and, even then, that would be up to the rights owner
to decide.

     Strictly speaking, the section neither defines nor prohibits violations. It
defines no authority upon which a law enforcement officer could arrest or even
halt a violator. A violation of the above section is, precisely, a copyright
violation. It is not, per se, illegal and does not break a law.


     Amazingly, the vogons see nothing odd in the fact that copyright law bothers
to include a statute which prohibits willful copyright violations for commercial
gain and/or violations resulting in $1000 or more damage:

>>
U.S. Code : Title 17, Section 506, Paragraph A:

    (a) Criminal Infringement. - Any person who infringes a copyright
    willfully either -
        (1) for purposes of commercial advantage or private financial
        gain, or
        (2) by the reproduction or distribution, including by
            electronic means, during any 180-day period, of 1 or more
            copies or phonorecords of 1 or more copyrighted works, which
            have a total retail value of more than $1,000, shall be
            punished as provided under section 2319 of title 18, United
            States Code. For purposes of this subsection, evidence of
            reproduction or distribution of a copyrighted work, by itself,
            shall not be sufficient to establish willful infringement.
<<


It never occurs to the vogon types that, logically, some similar statute covering
no-gain and/or low/zero-value damages would need to exist for there to be a law
to break when ancient software is copied.

     No such law exists.



Rubywand