Re: Different Idea... (WAS Re: Net piracy?)

[mnementh@netcom.com (David R. Villegas)]

jeffr@bmerha2a.bnr.ca (Jeffrey Robertson) wrote:
>>I was just playing a Steve Martin album on my 8-track player.  Can I argue
>>that it's legal or moral for me to copy copyrighted 8-tracks since I've
>>exhausted all possible ways to get new/used ones?  (I prefer compact discs
>>anyway.)
>>
>>This analogy comes to mind because Leisure Suit Larry and some of the items
>>listed in the Cassandra directory are currently still available on other types
>>of computers.  And financial and other productivity software is trivial to
>>find on other computers as well.
>
>Well, in the case of your 8-track, the law would go something like this:
>Case (a) you have an 8-track tape you want to play in your new car, which has
>a cassette deck.  You're allowed to copy the 8track onto a cassette and use
>it.  That's part of "fair use".  Presumably you should destroy the 8track
>afterwards, or at least never listen to both at once.  This follows the idea
>of buying the right to use the software (music), but not the media.
>
>Case (b) you want to play the latest Rush album on your 8track.  Buy it on CD,
>and copy it onto 8track.  Again, the fair use doctrine applies.  Just because
>you can't buy it on 8track doesn't mean you don't have to buy it at all.
>
>Now, since software is not so easily copied between platforms, you've got a
>problem.  LSL is case (b):  you can buy it only for other platforms.  I'd say
>you should be allowed to buy the IBM version, reverse engineer it, and write
>an Apple II version, which only you would use.  A whole lot of work, but it
>fits the idea of using the software, not the media.  Of course, some licences
>specificly forbit reverse engineering, but that's another issue.

You're misinterpreting the analogy.  The 8-track would be an Apple II, a
cassette would be another platform.  It's legal for me to make a cassette
copy of an 8-track I own;  I assume it's also legal for me to make a disk
image of Apple software I own so I can use it on an Apple emulator on another
computer.  Buying a Rush CD and making an 8-track is fair use, making an
8-track of a friend's Rush CD isn't fair use, and making an Apple disk from
a disk image of copyrighted Apple software which I don't own is a copyright
violation.

Reverse engineering of software complicates the matter and would be harder
than converting a compact disc into a 33 rpm record.  If a record album is
out of print but is obtainable on CD, it's easy to argue why the copyright
of the record album is still valid.

>>Are out-of-print items public domain or are they now just collectors' items?
>
>If the copyright holder defends the copyright, they are collector's items.
>(Assumine someone wants to pay to collect them, of course).  If the copyright
>holder doesn't care, they're public domain.  ... And we're right back to
>the same old argument.

That same old argument holds no weight in court-

Here are some excerpts from pt 2 of the Copyright FAQ by Terry Carroll (1994):

   There is a common belief that if someone infringes a copyright, and the
   copyright owner does not sue or otherwise put a stop to the infringement,
   the copyright is lost and the work goes into the public domain.

   It was the publication
   without notice, and not the lack of enforcement, that actually worked to
   put the work in the public domain.  This is forfeiture of copyright, not
   abandonment.  Because the notice requirement is now gone from copyright
   law, these cases don't have much weight today.

   I can't find anything that supports the idea that failure to assert a
   copyright against an infringer can alone lead to placing the work in the
   public domain

   Of course, circumstances may be such that the ability to sue a particular
   infringer might be waived (e.g., a statute of limitations may expire (see
   section 3.4), or if the infringer has reasonably relied to his or her
   detriment on the copyright holder's failure to sue, the doctrine of
   laches may bar a suit), but that's only with respect to that particular
   infringer, and does not affect the status of the copyright with respect
   to others.

and from part 3:

   3.3) Is copyright infringement a crime, or a civil matter?

   It's always at least a civil matter (a tort).  17 U.S.C. 501(b) details 
   the mechanisms by which an owner of a copyright may file a civil suit, 
   and 28 U.S.C. 1338 expressly refers to civil actions arising under the 
   copyright act.

   However, under certain circumstances, it may also be a federal crime.  A 
   copyright infringement is subject to criminal prosecution if infringement 
   is willful and for purposes of commercial advantage or private financial 
   gain.  17 U.S.C. 506(a).  If the offense consists of the reproduction or 
   distribution, during any 180-day period, of 10 or more copies having a 
   retail value of more than $2,500, the offense is a felony; otherwise, the 
   offense is a misdemeanor.  18 U.S.C. 2319.


And if you argue that Apple software has no market value nowadays, keep in
mind that copyright violation is subject to statutory damages, not just actual
damages.