Subject: Re: New Apple II SuperSite Online
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From: Rubywand <rubywand@swbell.net>
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Kelli Halliburton writes ...
> 
> "Rubywand" <rubywand@swbell.net> wrote in message
> news:39EDA6D9.F64FB4A9@swbell.net...
> 
> >      Free distribution of old commercial software with no real market
> > value violates no law. Since the distribution benefits users as well
> > as rights owners, the truly "caring" thing to do is to continue the
> > distribution.
> 
> Ruby, that's a very flat statement. And, technically, wrong. Violation of
> a copyright, defined as "reproduction of a work in whole, or in parts not
> falling under 'fair use,' without the express written consent of the
> author," is a federal violation.
>

     Kelli, no one disputes that copying old commercial software without
permission is, technically, a "copyright violation". That is an automatic
consequence from the definition of "copyright". And, if you plaster a notice
(such as the one you are quoting) on some box it is surely very impressive
looking.

     Nevertheless, it is important to understand that there are many "rights"
and privileges created by legislatures and by custom for which there is no
corresponding statutory "violation" prohibition. That is, there is not a law
against everything which may (or may not) seem improper.

     A copyright creates a kind of intangible property with a value related
to the value of the copyrighted item. As far as the actual copyright grant,
that is pretty much it. You have a property. If someone messes around with
your property, you can tell them to "stop it". You also have the option of
suing for damages and pursuing other remedies in civil court.

     There does not seem to be any statute which supplies a prohibition and
defines penalties for, per se, violating copyrights. There is a statute which
prohibits copyright violations resulting in monetary damages exceeding a
certain level and defines penalties. This and similar laws are the
"anti-piracy" laws. 

     10-20 year old software which is no longer in distribution by the owner
is, quite reasonably, normally presumed to have no real market value. For one
thing, the fact that the item is not being distributed by the owner for
profit is taken to imply that it can not be. For another, the fact that the
item is being freely and openly distributed without objection from the owner
is taken to mean that the owner does not object or has no real concern about
the status of the item. Distributing such a software item without permission
is, indeed, a technical infringement of the item copyright; but, it results
in no damage. The infringement does not "break a law". Calling an
infringement which the Law permits "illegal" makes no sense.

     It is precisely because freely distributing oldie commercial software
with or without permission _is_ "legal" that the archives which do the
distributing operate in the open, try to make choices which benefit owners,
and try to be responsive to owner wishes when these are expressed. 



> Whether or not the law as it exists presents a benefit to society is
> extremely doubtful.
>

     Copyright law has worked reasonably well. After all, just the notion
that anyone should have an exclusive copy right for anything is quite a lot
for society to concede. Copyright law has done a lot to make creativity
profitable.

     Now that so much stuff with commercial value is so easy to copy and
distribute, there probably need to be a few changes in the law. For instance,
practically all software has real market value for just two or three years.
The duration of software copyrights should reflect this reality.  

     Possibly more important is arranging for easier legitimate distribution
at reasonable prices. Music, videos, programs, and other e-wares are still
marketed with the idea that the seller must charge outrageous prices to
compensate for piracy. This policy promotes piracy with the result that
prices must remain high and/or product quality must be lowered.

     Most people really do want to pay for the songs, movies, games, etc.
they like. As net activity rises and more users have DSL (or something
faster) it will be much easier to set up on-line sale and transfer of e-goods
at low prices.


 
> This is why many people choose to violate the law as a matter of civil
> disobedience. Read Thoreau. It gives the abandonware issue a very noble
> context.

     That may be. However, such "civil disobedience" exists chiefly in the
minds of the would-be rebels.

     The Law has little to say about individual user-side copyright
violations. Making a copy of a new music CD, movie tape, or program violates
a copyright; but, the level of damage due to one individual's violations is
tiny. The real force working against individual theft of copyrighted material
with real commercial value is not the Law as it actually exists; it is
individual ethics and, to some degree, a wish to comply with the Law as it is
imagined to be.




> But IMHO, for a specific case of a particular individual item of
> software to qualify, as a matter of freedom of information, and passive
> resistance to archaic and poorly implemented laws, it needs to meet some
> very specific conditions.
>

     Really, the laws are neither very archaic nor poorly implemented.


 
> 1) The software must be unavailable from any authorized distributor. No
> online, offline, storefront, mail order, or one guy with an old but still
> valid distribution license operating out of his basement can still offer
> the item.
>

     With very few exceptions-- e.g. SS2 distribution of Ultima/gs for Bill
H-- there are no authorized distributors for any old Apple II software
products. Everyone agrees that a product being offered for sale by a rights
owner or the agent of a rights owner should not be freely distributed without
permission of the rights owner.



> 2) The copyright holder must be either unreachable or unresponsive.
> 
> 3) The software must be at least ten years old.
>

     Current guidelines focus upon time elapsed since a product was in
distribution. Something like 3-5 years seems to be the usual suggested delay.


 
> 4) If separate from the copyright holder, the author or authors of the
> software must agree to its free distribution. If the author or authors
> cannot be contacted, this provision can be waived.
> 
> Now, technically speaking, this is still a violation of federal law.
> However, it is a violation which does two things. First, it is a modus
> operandi that is much less likely to result in actual criminal or civil
> action. Second, it is a course of action which has specific criteria
> designed to minimize, if not eliminate, any possible damage to the
> copyright holder, and thus could quite possibly
> be used as a legal defense. The important thing about
> a legal defense is that it must be based on specifics.
>
> Of course, that would actually require that prosecution be undertaken, or
> that civil action be brought, which, given that the plan is specifically
> designed to minimize the chance of that, seems unlikely.


     It may be worth observing that, whatever someone may think copyright law
says or wish that it said or speculate that it might say, the plain simple
fact is that law enforcement authorities have consistently supported the
position of the archives which freely distribute the ancient software. The
same is true for the overwhelming majority of Apple II users.

     Regarding the position of rights owners, it can hardly be improved upon.
Without signing away any rights to or control of a product, an owner can
allow the software to be distributed and derive the benefits of free brand
name advertising, recognition for those involved in creating the software,
and/or just the satisfaction of knowing the product is still being used and
appreciated. Or, the owner can have the item removed from distribution
without any need for threats or legal hassle.

     There are other benefits to an owner and/or creator which may not be so
obvious. It is surprising how many owners and programmers end up with no
working versions of their own stuff. They are grateful to find that a good
copy is available for downloading. Then, too, even established games and
utilities may retain a few bugs. These will often be repaired by users and
the fixed version uploaded. Should the rights owner ever decide to remove an
item from free distribution and offer it in some kind of Retro Wares package,
he/she can choose a version which works better than the original.


     The point of the above is that the current system for dealing with old
commercial software works well and has the support of those involved as well
as the support of copyright law.

     It may be that some of the points you raise could lead to improvements.
For example, perhaps there should be a more cooperative relationship between
archives and sellers of old software stocks. Even so, any suggestion for
change which begins with the premise that we should engage in purposeful law
breaking to "protest" supposedly unjust laws is not going to be very
attractive. We would lose the backing of the Law and end up no better than
the few remaining vogon vigilantes.



Rubywand