Re: Law- Asimov and A2-Delphi

[CUTjefbla@bconnex.net (Jeff Blakeney)]

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).

>     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.

>     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?

Again, it should be documented with the program.

>     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.  Besides, it isn't
just his opinion.  There are many people who agree with him.  And if
you want facts, the Asimov site is breaking the law.

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.

>     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.

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.  :)

>     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.

I see what you are trying to say here but if a copyright holder wants
to be able to back up their claim that a certain site or person was no
longer allowed to distribute their software, then they would have to
document it somehow.  Even if all they do is update the documentation
with the new distribution restrictions and distribute it to all the
places that are allowed to carry it, they have proof of the
restriction and can enforce it.  Trying to get anything done when all
you've done is tell people that there is a distribution restriction
will be next to impossible.

>     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.

They are completely different.  How do you propose people get Freeware
or Shareware programs if everyone treated them like commercial
software?  Answer: they wouldn't.

This is why Freeware and Shareware were created.  To allow programmers
to distribute their programs without having to convince a software
distributor that they're program is good enough to publish.  Back in
the early days of Shareware, there were many programs released as
Shareware that had been turned down for commercial distribution.

>
>
>     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.

No.  Free distribution of Shareware and Freeware is assumed unless the
file contains distribution restrictions.  That is their nature.

>     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.

Again, no.  Same reason as above.

>     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.

Yes, if the programs on those archives are public domain, freeware,
shareware or are allowed there in a distribution restriction then
those archives have already taken all the approval validation steps it
needs to.

By the way, if I remember correctly, the software that is made
available on the Treasure Chest Project is actually just links to the
software on other sites like the ground ftp archive.  Doesn't this
mean that, by your approval validation system, that Willie must ensure
that all those archive sites that he links to have gone through the
proper steps as well as going through them himself?

>     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.

They aren't challenging any copyright restrictions so it isn't
software piracy.

>     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.

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, probably has express
permission for some software and NO PERMISSION for most of the
software made available there.

>     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.  Besides, you still have to pay
(usually) to get access to the internet to get to the Asimov site.

Either way, you are paying for a service and getting access to the
software as a byproduct of this pay service.  So if there is a
distribution restriction saying that you cannot charge anything to
make it available, it would not be allowed at either Delphi or Asimov.

However, I have yet to see this type of distribution restriction.  I
have seen ones saying you cannot charge more than regular connect
charges or $5 per disk restrictions, though.

>     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.

I take it this is an addendum to the paragraph above explaining that
the file databases require a paying account because it certainly isn't
a comparison of Delphi to Asimov.

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?

>     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? 

Delphi because it doesn't make COMMERCIAL software available unless it
has been reclassified or has received express permission from the
copyright holder to make it available.  Asimov simply breaks the law
and makes the software available without any permission.

=== I've had enough SPAM.  Cut the obvious from my address to email me. ===
         Jeff Blakeney - Dean of the Apple II University on Delphi