Re: Law- Asimov and A2-Delphi

[Rubywand <rubywand@swbell.net>]

tward@XXXXenteract.com writes ...
> 
> On Sat, 23 May 1998 01:40:38 -0500, someone using Rubywand's computer
> composed the following message <35666F66.CF0A33B@swbell.net>:
> 
> >      If you truly believe this, then turn your attentions first to the
> > for-profit Apple II on-line service sites which maintain archives of
> > copyrighted software they do not own. Let them meet the standard set by
> > our Treasure Chest Project. When you have brought the for-pay sites to
> > an acceptable state of purity, there will be a model for Legality toward
> > which mere non-profit archives may strive.
> 
> I have told you this before, but I will repeat it here in public. The
> Genie and Delphi Apple II file archives do not contain any commercial
> software unless we have been granted express permission from the
> copyright holder. We are very careful about checking these things.
> 
> Now I know you are going to ask me about freeware and shareware. No, we
> do not usually contact the copyright holders of freeware, shareware, and
> public domain software because by definition this type of software is
> freely distributable.


     As you should know, it is accepted practice among A2 archives that
any piece of software will be delisted from any particular site upon the
request of the copyright holder whatever the software's supposed or
in-ware declared status. This would apply, as well, to inclusion of a
piece of software in any 'shareware collection'.



> 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. 

     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?

     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.

     Suppose anyone should start a new A2 archive. How can he/she be
sure that some author or clique is not displeased with some past message
posted to Csa2 and would not wish certain "freware" or "shareware" items
listed on the site?

     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.

     What makes you so sure that many authors whose "freeware" and
"shareware" you now list would wish to have their software maintained on
any site associated with A2-Delphi attacks upon Asimov? It is a safe bet
that, if all authors with wares on A2-Delphi knew they are there, some
would wish their wares to be removed.

     Once we accepted that A2 authors could release "shareware" or
"freeware" and, then, at any time, require that it not be listed on this
or that site, any presumption of free distribution disappeared. You can
not promote crusades to restrict "shareware" to sites which follow some
'party line' and, at the same time, assert a presumption of free
distribution. For Apple II software, the presumption simply does not
exist.

     Shareware and freeware copyrights are as sacred as commercial ware
copyrights. For copyrighted Apple II software, the presumption of free
distribution is no better for so-called "shareware" or "freeware" than
it is for old out of print commercial software.


     There is one and only one way to know that an upload to an archive
and its archiving on the particular site has the approval of the
copyright owner. The archive must contact the supposed copyright owner,
verify ownership, and obtain permission.

     Moreover, in order for site users and software creators to have a
reasonable level of confidence that pieces of software are approved for
listing on a given site, both ownership and listing approval information
must be accessible to site users for each piece of software.
   
     You are not, of course, going to claim that the archives you
mention or any other major Apple II archive follows the above approval
validation procedures. Short of Csa2's Treasure Chest Project, no site
even tries.

     Consequently, all major Apple II archives are, technically, in the
position of permanently challenging established copyright restrictions.
If you wish to characterize this as "software piracy", that is your
problem.



> 
> And do not confuse the commercial online services with the free-for-all
> known as Usenet and ftp sites.

 ....

     Very well. It does seem that some sites are, clearly, more friendly
to copyright owners than others. Let's compare the A2-Delphi archive and
Asimov.

     Both maintain copyrighted software they do not own without express
verifiable permission of the copyright owner.

     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.

     The A2-Delphi archive's contents appear to be hidden and/or
non-downloadable by any but paid subscribers. (If it is wide open to
unpaid subscribers, be sure to let us know.)  Meanwhile, any user,
author, and copyright holder can view Asimov's contents at any time.

     Since all major Apple II archives follow the practice of delisting
a piece of copyrighted software when this is requested by the copyright
holder, which of the two sites mentioned above is more friendly to
copyright owners? 



Rubywand