Subject: Re: Argh
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From: Rubywand <rubywand@swbell.net>
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Date: Thu, 29 Jun 2000 10:22:26 -0500
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Kelli Halliburton writes ...
> 
> Somebody needs to go around and start this argument in all the
> other orphan platform newsgroups. At least that way I won't have
> to cringe only when I read csa2.
>

     Alas, other 'vintage' platforms do not appear to be blessed with a
clique of mini-Napoleons who imagine themselves God's Gift to Computing.

 
 ....

> 
> One of the benefits of using an orphan platform is the huge
> library of old software that exists for that platform. But you
> can't get any of that software, so why get involved with the
> platform?

     Fortunately, via archives like Ground, TFFE, Asimov-Georgia, Vault,
'Fairway, Uni-kl.de, USA2WUG, and a few others, you can get most old Apple II
software.


> Because of the new software? Oh yes, development for
> orphan platforms is occurring at such a prodigious rate! Why, in
> the past year, more than TEN new programs were released for the
> Apple II alone! And there were upgrades to 20 more! WOW!!!
>

     Not all that bad. Mainly, we need more new game releases. In the longer
term, we need to get IIgs hardware upgraded in order to support applications
such as an internet browser and advanced entertainment software which will
make the Apple II a viable alternative to PC.


 ....

> In all likelihood, it could be very easily argued that in the
> case of computer software for orphaned and/or obsolete
> platforms, the viable lifetime for a work (that is, the duration
> of the time period in which: an author can reasonably expect a
> non-trivial compensation for his creative efforts, or a
> publisher can reasonably expect a net gain on his publication
> efforts) is much shorter that for other fixed and tangible
> works. Ten years from publication or twelve years from creation
> (whichever is shorter) seems a reasonable approximation, though
> the exact length is open for discussion at this stage.

     Five years should be more than long enough. Most game producers discount
their stuff to near zero after two years.


> It may be argued further, that in the absence of an identifiable
> agent for the copyright holder for a piece of software that has
> passed the end of its viable lifetime, that the work may be
> treated as 'open licensed,' my own term, meaning that until an
> objection is issued by an agent for the copyright holder, the
> work may be freely distributed as though it were in the public
> domain.

     In fact, this comes very close to describing current practice. Oldie
commercial wares are not actually treated like public domain; but, they are
freely distributed unless the copyright owner objects.


> 
> HOWEVER, such an argument has not yet been made before a court
> of law, much less upheld.

     Perhaps not exactly as you suggest-- i.e. suggesting an official status
equating to a kind of provisional public domain.  


> And so we must currently abide by the
> laws which exist, challenge them by means of test cases (and
> argue these points before a court of law, with the possibility
> of getting the law changed), or opt for civil disobedience.
> It seems that many of the regular listers of this newsgroup have
> opted for the third choice, and others for the first.

     Some users in the majority may believe that they are engaging in "civil
disobedience" or even "piracy"; but, in truth, they are not. There is no law
which, per se, says "you can not violate a copyright". There is civil
property law which says "if you violate a copyright you may be held liable
for any resulting loss of income from the property to the owner".

     For ancient software with no commercial value, even the usage
"violation" makes little sense. More properly, the sites which offer the
software and the users who download it are merely taking reasonable liberties
with the property. So long as the archives make sane choices regarding what
to offer and are ready to withdraw an item if so requested by the copyright
owner, there is no violation of law and no question of "civil disobedience". 

     A very small number of users do claim to champion absolute compliance
with copyright restrictions. However, they have no trouble backing members of
their group who supply ROM copies, violate trademarks, etc..



> No one seems to have considered the second option.
> 
> I hereby suggest that a test case be set up. I hope you can find
> a prosecutor willing to argue the case.

     That could be the big barrier. After all, there is no law against taking
liberties with software which has no commercial value and, so, nothing to
prosecute. In the absence of any objection from the rights owner, even a
property violation is very much in doubt.


> 
> By the way, I am not a lawyer. :) So don't ask me to help.
>
 ....

     Even so, thank you for posting an interesting analysis!



Rubywand