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

[jeffr@bmerha2a.bnr.ca (Jeffrey Robertson)]

In article <mnementhCtGtK1.Dw4@netcom.com>,
David R. Villegas <mnementh@netcom.com> wrote:
>jeffr@bmerha2a.bnr.ca (Jeffrey Robertson) wrote:
>>>I was just playing a Steve Martin album on my 8-track player. 
[snip]
>>>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.
>>
>>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
[snip]
>>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.
[snip]
>
>You're misinterpreting the analogy.

Am I?  Reading your following statements, I don't think I did.  Maybe I
just didn't communicate well enough.  I certainly agree with everything
you have to say next:

>  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.

But now we get to the other stuff:

>>>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):
[snip]
>and from part 3:

Bless you.  Finally someone posting facts, instead of just opinions.  Yes, I
was posting opinions too, as I was always careful to point out.  I also explained
where I got my opinions.  Of course, all of Law is just opinions and precedents
and interpretations of precedents, etc.  I'd say this Carroll fellow knows a
great deal more about the subject than myself.  He's also more current; most of
my knowledge was coming from copyright law as applied to conventional (ie. not
software) material.  It was also a few years old, which can often be positively
ancient in the legal world.  So assuming Carroll is as knowledgable as he
purports to be, a Lost Classics CD would indeed face legal problems if one of
the old copyright holders wanted to make a fuss.

I'd be interested in hearing Carroll's interpretation of the following
scenario:  Author A writes a game, and sells it to distributor D.  D sells it
for a while in the early 80s, then folds.  The copyright reverts to A (right?).
In 1994, C publishes a CD including that game.  After it has been around for
about a year, A notices it, reads up on his copyright law, and decides to
sue for damages.  (Doesn't really matter how much.)  In the court, C points
out that he tried to find D, but found they were out of business, and then
tried to find A.  He tried lots of things, like posting on USENET and putting
a classified ad in several trade journals.  No dice.  C argues he acted in
good faith, and that he is willing to pay A for copies sold from now on
(he'll up the price), but doesn't think he should have to pay "back royalties"
or whatever.

I suggest this scenario, since it covers the most likely problem a lost classics
CD project would run into.  In most cases, the publisher is dead, and the
copyright has reverted to the author.  Since we're talking about moral people
here, and not true pirates, they did their best to obtain permission, but
failed.  It seems "unfair" that this author can come out of the woodwork to
hassle them.  Oh, and one final point:  how would the non-profit status of
"C" affect things?  If the CD was being published at cost (like any public
domain software is meant to be sold by a 3rd party - for the cost of the
media and the effort of copying it) as opposed to a big commercial venture,
would that affect the law?  It could certainly affect that $2500 (?) ceiling
Carroll mentioned.

>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.

Actually, I wouldn't suggest that at all.  The fact that people are interested
in the CD proves the software has value.


Finally:  My whole point in perpetuating this discussion is to determine exactly
          what hassles a prospective Lost Classics CD publisher would face.
          I don't plan to become one, but I'd still like to prove that it would
          be a legal venture.  With this new evidence, I'm not so sure...

Cheers,
-- 
-------------------------------------+----------------+-----------------
Jeffrey Robertson                    |  jeffr@bnr.ca  |      BNR, Ottawa
"I speak for myself, not BNR" - Me   +----------------+       (Meriline)
"Verbing weirds language" - Calvin                      OC-48 FiberWorld