Re: Law- Asimov and A2-Delphi

[Rubywand <rubywand@swbell.net>]

Jeff Blakeney writes ...
> 
> On Wed, 27 May 1998 19:08:19 -0500, Rubywand <rubywand@swbell.net>
> wrote:
> 
> >tward@XXXXenteract.com writes ...
> >> Yes, there is the occasional "restricted
> >> distribution" software and we do honor these restrictions
> >
> >     You are admitting that, for Apple II software, it is standard
> >practice to regard declared or implied "shareware" or "freeware" status
> >as provisional. This, alone, destroys your argument.
> 
> Huh?  Shareware and Freeware are, by definition, freely distributable
> UNLESS there is distribution restrictions on the file which would have
> to be included with the file somehow (usually in a documentation file
> in the archive).

     It has, for years, been established practice for several developers
to release an item as "shareware" or "freeware" and, then, proceed to
say this or that site may not maintain and list the software. That is,
the author can, at any time, require that a particular site delist a
piece of "shareware" whatever free distribution statements may appear in
the software or its associated documentation. 

     Sites not mentioned in some announcement have gone to the trouble
to archive and index various "shareware" and "freeware" items; but,
later, some of these sites have been told to remove the items.

     The few sites which took your position and listed the so-called
"shareware" anyway were roundly condemned for "piracy" by developers and
their allies. Eventually, the sites delisted the software.

     The result is that no Apple II site has any good reason to presume
that, just because something is labeled "shareware", it may be offered
for downloading on that particular site.



> 
> >     Suppose LJ Silicon wants to place a piece of A2 shareware on
> >his/her site. He is on record as defending Asimov. Some persons are
> >known Asimov attackers. How can LJ reasonably know that it is okay to go
> >to the time and effort of obtaining the item and listing it on his site?
> 
> He just needs to check the documentation with that piece of shareware.
> If there are no distribution restrictions, he is free to place that
> piece of shareware on his site.
> 
> >     Do you recall Marvin's post following placement of AudioZap.2.0 on
> >his Uni-kl.de archive? He expresses gratitude that the author had not
> >requested the item be removed. Marvin knew better than to presume free
> >distribution rights. AudioZap.2.0 is _"freeware"_, yet, it is widely
> >recognized that the author might well refuse to have it listed on this
> >or that site.
> 
> If he wants it restricted, then he had better document it somewhere so
> that everyone will know.
>
 ....


     Obtaining and adding software to an archive takes some time.
Indexing it takes more time and bother. Adding some pizzazy selection
option to a web page takes yet more time and effort. In your above
replies, you recommend that site managers look at an item's
documentation-- reasonable, but not good enough when it comes to Apple
II software.

     As you imply, the way the Apple II community treats "shareware" is
a perversion of the shareware idea. It is a price we pay for putting up
with malcontents who employ product availability as a weapon. You may
complain that it destroys any reasonable presumption of free
distribution, as it surely does. Nevertheless, it _is_ established
practice.

     Obviously, archive site managers can not take the time to contact
owners and directly verify permission for every piece of software
listed. So, they list software they believe will not be challenged by
copyright owners, take their chances with some listings, and, on a few
rare occasions contact a copyright owner.

     When you are talking about copyrighted Apple II software in 1998,
it does not much matter whether it is old commercial software or
"shareware" or "freeware", except, that, probably, an old commercial
listing is _less_ likely to be challenged. 


> 
> >     You speak for the A2-Delphi archive. A2-Delphi is, now, known to
> >permit its forum manager and staff to promote slanderous attacks upon
> >the Asimov site. The Asimov site is a long-established Apple II
> >institution highly valued by the vast majority of Apple II users.
> 
> No, the forum manager was stating his opinion of the site. He is
> allowed his opinion and he is allowed to state it.


     Free speech does allow stating whatever one wishes to state. It
does not free one of the consequences.

     There are legally constituted law enforcement agencies for dealing
with claims of software piracy. The A2-Delphi forum manager can contact
such an agency just like any other citizen. Instead, he takes it upon
himself to employ Delphi.com's services to inflict damage upon the
Asimov site's reputation.



> Besides, it isn't
> just his opinion.  There are many people who agree with him.

     A few, including, by the way, most of those who have helped wreck
the shareware concept for Apple II software.




> And if
> you want facts, the Asimov site is breaking the law.
>

     The evidence says otherwise. Asimov has existed for years. It is an
open archive which any copyright owner _and_ law enforcement agency can
check. We all know that the usual A2-Delphi-based clique of trouble
makers has tried to spread the idea that it is a "pirate site" to
everyone imaginable.

     Obviously, by now, any law enforcement agency which might be
concerened about software piracy has had ample opportunity to check
Asimov. Since Asimov has not been closed, common sense should tell you
that law enforcement agencies do not regard its actions as illegal.


 
> As to Asimov being "highly valued by the vast majority of Apple II
> users," that is your opinion.  Asimov was started, and as far as I
> know, continues to be used more by Apple II emulator users rather than
> actual Apple II users.
>

     Asimov is used by many owners of real Apple II computers. Read back
through Csa2 postings over just the past few months and you will find
many which deal with nothing but downloading and tranformation of disk
archive files. To these you can add numerous questions about where to
find some old game or utility.

     If prospective new Apple II users did not believe they could
download and play old 1980's games, we would have far fewer new users.


 
> >     What makes you so sure that many authors whose "freeware" and
> >"shareware" you now list 

 ....

> If that little scuffle on Delphi is enough to get people to pull their
> software from Delphi, then the Internet wouldn't be allowed to make
> anyones software available.  :)

 ....

     My guess is that, while most authors with software on A2-Delphi
probably disapprove of attacks on Asimov, few are interested in using
software availability as a weapon. In case you have not noticed, those
who back Asimov tend not to wish to wreck Apple II institutions.



> 
> >    .... It does seem that some sites are, clearly, more friendly
> >to copyright owners than others. Let's compare the A2-Delphi archive and
> >Asimov.
> 
> Okay, let's
> 
> >     Both maintain copyrighted software they do not own without express
> >verifiable permission of the copyright owner.
> 
> Delphi does have express, verifiable permission for some software and
> has implied permission for everything else.  Asimov has implied
> permission for very little of the software there

 ....

     A2-Delphi has been subjected to no close examination by critics.
Asimov has. At best, we can guess that A2-Delphi maintains a pile of
software with no permission, pretty much like every other Apple II
archive.


> 
> >     The A2-Delphi archive is part of a for-pay operation, it derives
> >monetary gain from the copyrighted software it maintains but does not
> >own. Asimov is a free archive.
> 
> As long as there is no distribution restriction stating that you
> cannot charge anything for making the software available, whether you
> are paying or not is irrelevant.

 ....

     Most users and copyright owners do not have paid A2-Delphi
subscriptions. We can check Asimov. We should not have to pay a fee to
protect our rights on the A2-Delphi archive.


> 
> So, no, at present (and I don't think it will ever happen), you cannot
> access the file databases from a free web account.  You must get a
> paid account.  But then, Delphi needs to hold some things back to get
> people to pay for the service.  Otherwise, who would pay if everything
> was made available free?

 ....

     True; but, this does not prevent the A2-Delphi archive from making
a thorough listing of available software (titles and authors/owners)
available to the public.

     For now, it is much easier to have confidence in the correct
operation of a free site which operates in the open, like Asimov, than
in a hidden for-pay archive.



Rubywand