On Mon, 2006-02-20 at 16:21 -0500, Rob wrote: I don't care about the law, morally, it's stealing.

On Mon, 2006-02-20 at 16:57 -0500, Rob wrote: The point is, the developer of a piece of software has the right to release it under any license they choose. It's not OK to violate the license (whether open source or proprietary) just because you disagree with it. If you don't like it write your own app. Lee

On Mon, 2006-02-20 at 17:41 -0500, Rob wrote: I hope you understand that there could be no "free software" without copyright. If you like the GPL you have copyright law to thank. If I am a "copyright zealot" then so are the legal systems of the vast majority of countries in the world. Lee

On Tue, 2006-02-21 at 09:57 +1100, Ryan Heise wrote: That's free as in beer, not as in speech. "Free software" in the Linux world generally refers to the latter. Lee

On Tue, 2006-02-21 at 09:57 +1100, Ryan Heise wrote: Correct. Most of it written by or for the US government. There is a little in JAMin. What Lee was trying to point out, I believe, is that free software that continues to be free and not taken over by a proprietary company and improved and hidden from you is dependent upon copyright. Would I, as a developer, release my code into the public domain knowing that any company could take it, improve it, sell it, hide it from me, and not give me credit for my work? I doubt it. What you fail to realize is that copyright is not what keeps you from Micro$oft's code, it is trade secret. Copyright only keeps you from legally making a copy of it and not paying for it. If there were no copyright then many software companies would not be in business. In some cases this would be an improvement but in many others it wouldn't. There are companies writing proprietary software that no one in the FOSS community wants to touch. This is the real world not the ideal. Get over it. -- Jan 'Evil Twin' Depner The Fuzzy Dice http://myweb.cableone.net/eviltwin69/fuzzy.html "As we enjoy great advantages from the invention of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." Benjamin Franklin, on declining patents offered by the governor of Pennsylvania for his "Pennsylvania Fireplace", c. 1744

On Monday 20 Feb 2006 23:27, Mike Taht wrote: I don't think either of these is very helpful. In both cases, for many people the answer is "yes, of course I would". Probably these people are equally happy with proprietary software, so your analogy may still hold, but that won't get you far as a persuasive bit of rhetoric. Analogy is often useful to describe, seldom to convince. (I have tried the car analogy on a few people not familiar with open source software, and the general response is that the question itself is perplexing. It would make no sense to sell a car that could not be serviced at all, while many people would indeed choose to buy a car that could not be serviced by users "at home". For example, the Audi A2 is sold with no user-serviceable parts except for fluid topups; it almost literally has the hood nailed shut. Nice car, I'd buy one. Meanwhile, I bet most people who own property here in London will never have seen the original plans for it.) Chris

On Mon, 20 Feb 2006, Mike Taht wrote: You seem not have noticed that today also the proprietary software can do the same. And the result is not so much caused by advances in the software but in hardware. Today's machines just are 3-5 times more powerfull than the ones three years ago. Thinking that the open source model did the miracle is just an observation error. When I started with Linux sound 15 years ago (486/50DX2 at that time) it was barely possible to play a 3 channel .MOD file at 44 kHz in real time. I had to convert the player (str) to use fixed point instead of floating point and to do all kind of other modifications. To play a MP3 file was just a dream until Pentium machines). Now 15 years later the same program plays a 2 minute module in fractions of a second. The same is almost true with MP3 files. All this just because the hardware is 1000 now times faster. The software is unmodified so it doesn't cause any improvement (other than the effect of better optimizations in recent gcc versions). This has nothing to do with "proprietary ethos". This kind of stuff depends just on company culture. It is possible to produce proprietary software without any lawyers or marketing staff. Tech support is not a big issue if the software is adequately good. Unfortunately license keys are required because otherwise you cannot get anybody to pay for the software. The claim that proprietary software has more bugs than open source one is an urban legend. There is proprietary software that is full of bugs. Equally well there is open source software that doesn't even compile. Some software is just written by incompetent programmers. This has nothing to do with the distribution policy. If there are any bugs then users report them to the author of the program who fixes it (also with proprietary software). Best regards, Hannu ----- Hannu Savolainen (hannu(a)opensound.com) http://www.opensound.com (Open Sound System (OSS)) http://www.compusonic.fi (Finnish OSS pages) OH2GLH QTH: Karkkila, Finland LOC: KP20CM

Hallo, Lee Revell hat gesagt: // Lee Revell wrote: Of course there can be Free Software without copyright. Public Domain is an example, there are others. The incentive to use the concept of Copyright in the GPL never was to praise the merits of "Copyright" or even "Intellectual Property". The GPL used the already existing Copyright laws to fight Copy-Restrictions. That's why this is called Copyleft. Please don't turn the Copyleft idea into a defense of Copyright. Ciao -- Frank Barknecht _ ______footils.org_ __goto10.org__

On Tue, 2006-02-21 at 12:45 +1100, Loki Davison wrote: Bringing it All Back Home is my favorite. Lee

On Mon, Feb 20, 2006 at 05:41:05PM -0500, Rob wrote: The moral part results from your accepting the terms of the license, which is a contract between you and the creator of the software you buy. In this contract you usually agree not to harm the commercial interest of the creator by distributing his work to people who do not pay him/her for it. By defaulting on a contract or not keeping your promises by your own choice you demonstrate your lack of respect for the other party, and as a result you won't get much in return. And since the society we live in depends to a large extent on contracts being honored and promises being kept rather than on the the use of physical force, chances are you will be punished for that sort of behavior. A lot of things - software, literature, music,... have a value that is not encapsulated in their physical form. It's one of the features of a phenomenon called 'culture', or 'civilisation'. Failing to acknowledge this is as stupid as postulating that humans can't think or feel - it is materialism in its most primitive and ugly form. -- FA

Hallo, fons adriaensen hat gesagt: // fons adriaensen wrote: Contracts can be morally wrong, too. If one would adhere to the view, that it is unmoral to break the law or breach a contract, we would still have slavery, which was only overcome by stealing, breaking contracts and acting in "immoral" ways. Ciao -- Frank Barknecht _ ______footils.org_ __goto10.org__

Hallo, Pete Bessman hat gesagt: // Pete Bessman wrote: It's even easier for a contract to be morally wrong, because generally public law is influenced by the common view of morals more than private contracts. In German that would be a contract, that is "sittenwidrig". I think, the legal term in English is "contrary to public policy". Contracts to sell your vote would be an example for this, though these are illegal as well in many countries. Ciao -- Frank Barknecht _ ______footils.org_ __goto10.org__

On Tue, 2006-02-21 at 15:08 -0500, Peter Bessman wrote: OK, is it morally wrong to sell yourself into slavery? Mill didn't think so: "By selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself.... The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom" (p. 158). http://www.victorianweb.org/philosophy/mill/ten/ch7c.html Lee

On Tue February 21 2006 15:08, Peter Bessman wrote: Not that the 'shrink-wrap licenses' to which Fons was referring are even accepted as contracts in many venues. I certainly never had a contract with, say, Syntrillian in the bad old days when I would download a pirated copy of Cool Edit Pro; the text of whatever EULA they used was never even included with the illicit version. The GPL itself is also not a contract; it's a license without which you can't distribute the program except by violating copyright. The respect argument is specious as well; I certainly don't respect Wal-Mart when I'm buying a new toothbrush or whatever. (And since I've paid for it, I'm perfectly within my rights to share that toothbrush with anyone, though I'd probably rather not.) So we're back to copyright violation, not breach of contract. And I stand by my original statement. I kinda like copyright now that there's enough software covered under the GPL to make it inconvenient for the people who fought so hard to extend copyright to cover computer software in the first place. Nonetheless, those who have attempted to use copyright to turn imaginary property (based on infinite reproducibility) into real property (based on scarcity) are wrong, no matter how much it might benefit them to do so. One million copies of notepad.exe have the exact same value in the real world as a single copy, regardless of how much sweat some peon in Redmond shed during its initial development. And that goes for emacs, Finder, Doom 3, Donkey Kong, In A Silent Way, Oliver Twist, Citizen Kane and the Mona Lisa too. I don't want to hear the "but no one can make any money unless we treat copies like physical objects" line anymore either. If I went into business selling a new kind of wrenches, with a shrink-wrap agreement on the outside requiring that they were only to be used by the purchaser, and then went broke because people started sharing their wrenches left and right despite my legal threats, I would deserve to be broke for pursuing such an unrealistic business plan. See also: CueCat. Rob

On Tue February 21 2006 16:20, Peter Bessman wrote: At any rate, not breach of contract, which was the whole point of that paragraph. There certainly was copyright infringement involved, whether by me or someone else, and nowadays the DMCA would come into play as well on the legal front, but Fons' argument was that using pirated software was immoral due to a breach of contract. I disagree. Rob

On Tue February 21 2006 16:52, Peter Bessman wrote: Please explain to me how I'm even party to a contract, assuming one exists, if I've never seen it. To this day I've never seen Syntrillium's EULA for Cool Edit Pro, and now they don't exist anymore and I go without stuff rather than pirating software. Someone may have breached a contract with Syntrillium, if they were living in a venue where a shrink-wrap license can be construed to be a contract (since most pirated software back then originated outside the US, I have no idea). However, if I did anything illegal it was to violate their copyright. If you invite someone into your vacation rental and he does something that violates your rental contract, even if he was aware that one existed, you're the violator of that contract, not him. I don't see much point in reiterating this again, so I hope you're able to understand. Rob

Rob wrote: Amen. c. -- www.cesaremarilungo.com

On Tue February 21 2006 17:14, fons adriaensen wrote: Since there was one Cool Edit Pro before and afterward there are two, the situation is completely different ethically no matter what the legal situation may be. Okay then, specious AND irrelevant. Rob

On Tue February 21 2006 17:25, Peter Bessman wrote: I wouldn't expect to. You asked us where we all stood, not to convince you that you were wrong. I've never known the "bits as atoms" debate to be one where a lot of minds get changed, anyway. It's like an electronic version of the abortion debate. Rob

I've had about enough of this thread, you all come across like bloody Nazis. On Tue, 21 Feb 2006 17:50:23 -0500 Lee Revell <rlrevell(a)joe-job.com> wrote:

On Tuesday 21 February 2006 18:17, Christoph Eckert wrote: Being a german does not imply being a nazi. Excelent advice. -- Cheers, Gene People having trouble with vz bouncing email to me should add the word 'online' between the 'verizon', and the dot which bypasses vz's stupid bounce rules. I do use spamassassin too. :-) Yahoo.com and AOL/TW attorneys please note, additions to the above message by Gene Heskett are: Copyright 2006 by Maurice Eugene Heskett, all rights reserved.

On Tue, Feb 21, 2006 at 06:25:28PM -0500, Dave Phillips wrote: No kidding. Here's an apropos sound of appropriately dubious legality: http://tinyurl.com/5k36l -- Paul Winkler http://www.slinkp.com

On Tue, Feb 21, 2006 at 07:42:26PM -0600, Jan Depner wrote: A computer program can be written as a big integer. Moreover, a computer program has no representation that is not a big integer. A song, novel, poem, picture, all have representations that are not integers. In particular, they are objects (though I contend that the relevant fact is that they are not integers). Since there is no difference between some big integer and a computer program, you must defend a copyright against either use. You have a computer program and I am doing math. I email you my results, and it contains the number of your program. I am using your program without a license. After all, *you have no way to tell that I am not*. Alternatively, a good way to make illegal copies of software would be to send an email that demonstrated some math. At a predetermined point, some number would be the program in question. You couldn't claim copyright infringment, because you have *no way of telling that I'm not doing math*. Philisophically, if you accept ownership of software, I don't see how you can not accept ownership of numbers without somehow appealing to the intent of the user. Artistic objects you mentioned like the above have representations that are not integers. Though I can have a digital representation of a painting that is an integer, I can also have an object that bears no sensible mapping to the integers. So I argue that unlike computer programs, things that are merely "digitizable" are very different from things that are only "digital". -- Ross Vandegrift ross(a)lug.udel.edu "The good Christian should beware of mathematicians, and all those who make empty prophecies. The danger already exists that the mathematicians have made a covenant with the devil to darken the spirit and to confine man in the bonds of Hell." --St. Augustine, De Genesi ad Litteram, Book II, xviii, 37

On Tue, 2006-02-21 at 22:32 -0500, Lee Revell wrote: OK, I missed your last paragraph. But I still don't agree with you ;-) Lee

On Tue, 2006-02-21 at 23:13 -0500, Ross Vandegrift wrote: Why is this a problem - intent is very VERY important in law. Lee

On 2/22/06, Ross Vandegrift <ross(a)lug.udel.edu> wrote: http://monolith.sourceforge.net/

On Wed, 2006-02-22 at 05:27 +0100, Cesare Marilungo wrote: What does "scarcity" have to do with anything. No one else has any right to my creations - they are mine. It is up to ME whether I want to give it away or charge for it or refuse to show it to anyone. Lee

On Tue, 2006-02-21 at 23:42 -0500, Lee Revell wrote: Lee, I think you're preaching to those who feel they have a right to anything merely because they want it. Creativity, hard work, incentive, all of these seem to mean very little to those who would rationalize away any form of ownership which prevents them from having what they want for no cost. Were the shoe on the other foot I doubt if they would be quite so adamant that copyright is evil - that is, if it were their song or novel that everyone was flogging about the internet without permission. -- Jan 'Evil Twin' Depner The Fuzzy Dice http://myweb.cableone.net/eviltwin69/fuzzy.html "As we enjoy great advantages from the invention of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." Benjamin Franklin, on declining patents offered by the governor of Pennsylvania for his "Pennsylvania Fireplace", c. 1744

On Wed February 22 2006 22:14, Jan Depner wrote: I guess if you can't come up with a solid argument in favor of pretending bits are atoms, ad-hominem attacks will have to do. Rob

I don't own the letters A-Z or a-z. I don't own the digits 0-9. I don't own any words in the Oxford English dictionary. I can create and copyright a unique collection of those words ( an novel, short story, new article, lyrics, etc.) A computer program is created as a collection of words - a unique collection of those words, that when compiled and executed on a target OS will (hopefully!) perform some function(s). To say that a software author cannot "own" that software nor have copyrights to it is the same as to say an author / poet / screenwriter / columnist / etc. cannot have any control over his work (or get paid for doing it) once it is finished. Phil J. On Tue, Feb 21, 2006 at 07:42:26PM -0600, Jan Depner wrote: A computer program can be written as a big integer. Moreover, a computer program has no representation that is not a big integer. A song, novel, poem, picture, all have representations that are not integers. In particular, they are objects (though I contend that the relevant fact is that they are not integers). Since there is no difference between some big integer and a computer program, you must defend a copyright against either use. You have a computer program and I am doing math. I email you my results, and it contains the number of your program. I am using your program without a license. After all, *you have no way to tell that I am not*. Alternatively, a good way to make illegal copies of software would be to send an email that demonstrated some math. At a predetermined point, some number would be the program in question. You couldn't claim copyright infringment, because you have *no way of telling that I'm not doing math*. Philisophically, if you accept ownership of software, I don't see how you can not accept ownership of numbers without somehow appealing to the intent of the user. Artistic objects you mentioned like the above have representations that are not integers. Though I can have a digital representation of a painting that is an integer, I can also have an object that bears no sensible mapping to the integers. So I argue that unlike computer programs, things that are merely "digitizable" are very different from things that are only "digital". -- Ross Vandegrift ross(a)lug.udel.edu "The good Christian should beware of mathematicians, and all those who make empty prophecies. The danger already exists that the mathematicians have made a covenant with the devil to darken the spirit and to confine man in the bonds of Hell." --St. Augustine, De Genesi ad Litteram, Book II, xviii, 37

On Wed, 2006-02-22 at 05:23 +0100, Björn Lindström wrote: Maybe in your country. In the US, copyright is automatic and doesn't even have to be registered (since 1998). Registering copyright can help you to defend it but all you have to do to claim copyright is to "publish" the work. In the legal sense "publish" means to issue the work on any medium with a claim of copyright on it to someone other than yourself. Not really hypocrisy, some of the merits of copyright should be self evident. Unfortunately Disney, and Sonny Bono, hijacked the US copyright law and changed it from a reasonable limit to something ridiculous. I keep asking for this but no one is taking me up on it...send me a copy of your latest song or novel and after I put my name on it and publish it on the internet with me as the author we'll talk about whether you think copyright is important. -- Jan 'Evil Twin' Depner The Fuzzy Dice http://myweb.cableone.net/eviltwin69/fuzzy.html "As we enjoy great advantages from the invention of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." Benjamin Franklin, on declining patents offered by the governor of Pennsylvania for his "Pennsylvania Fireplace", c. 1744

Ismael Valladolid Torres wrote: Yes, but you can't release those pieces under cc licenses unless you have control of copyright. You lose copyright then you lose the right to license those pieces altogether. Being an amateur is a middle-class luxury. cheers, tim hall /|\

On Tue, 2006-02-28 at 03:06 +0100, Cesare Marilungo wrote: there are not a lot of people who fit a description of the socio- economic group normally called "working class" that are releasing open source software. programmers by definition are generally middle class even when working as interns for large companies. and for some of us (/me waves), it is undoubtedly a reflection of utter middle-class luxury.

On Wed, 2006-02-22 at 21:10 -0600, Jan Depner wrote: They were just following Europe's lead on this. http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act "After the United States' accession to the Berne convention, a number of copyright owners successfully lobbied the U.S. Congress for another extension of the term of copyright, to provide for the same term of protection that exists in Europe. The act was named after the late Congressman Sonny Bono (who was killed in a ski accident more than nine months before the act became law), who had favored this position as a songwriter and filmmaker even prior to his entry into politics." Lee

A computer program is much more than an integer - it is a collection of Words (translated through many layers) into zeros and ones that represent A unique solution to a problem. Essentially it all boils down to zeros and ones (or varying degrees of current) through a bunch of wires and chips. Nevertheless, they do represent the intent of the author to create a unique Solution to some problem. That is like saying no one can patent a piece of electric powered machinery because it is all just electrons, and no one has a patent on electrons. The patent is not on the electrons, but on the unique way they are used. Phil J. On Tue, Feb 21, 2006 at 10:02:46PM -0600, pjfjacks wrote: collection No. A computer program is not it's source code. That's an important distinction to make! A computer cannot run your source code. The source code is merely there so you do not have to write out big integers to make the computer do some work. If I write code down on a piece of paper, a computer will *never, ever* be able to run *that*. I must enter it in a digital form and have it translated by some kind of compiler/interpreter/virtual machine/whatever. However, if I draw a picture on that piece of paper, it is already serving as a perfectly good picture. That's why I say a computer program is merely an integer. copyrights This is preciely the thesis that I debunked in my first mail. I do see something funadementally different because a computer program (not the source code) is merely an integer. Like I said to Lee - I don't necessarily feel like I'm ready to throw away all copyright as a result. There are oodles of pragmatic reasons to keep it. But I also find it very uncomfortable to assert ownership to an integer. -- Ross Vandegrift ross(a)lug.udel.edu "The good Christian should beware of mathematicians, and all those who make empty prophecies. The danger already exists that the mathematicians have made a covenant with the devil to darken the spirit and to confine man in the bonds of Hell." --St. Augustine, De Genesi ad Litteram, Book II, xviii, 37

pjfjacks wrote: Sorry, but this is *not* true. What if I own a patent for what could be the only possible way to write a fast realtime FFT algorithm? Nobody else can write an application that does the FFT at that speed. This is science (computer science, indeed). This is knowledge, and should be free. c. -- www.cesaremarilungo.com

Lee Revell wrote: Yes. :-) Or better, they're unjust. I guess you know that the existence of gnu/Linux and open source software in general is in danger because of them. c. -- www.cesaremarilungo.com

Then you find a way to "build a better mouse trap"! There are usually many ways to skin a cat as they say. If I can find a better way to do the FFT, peel potatoes, scale fish, Invent a device to nail jelly to a tree, whatever, I can copyright /patent and it is up to you to find a better way. Phil J. pjfjacks wrote: collection Sorry, but this is *not* true. What if I own a patent for what could be the only possible way to write a fast realtime FFT algorithm? Nobody else can write an application that does the FFT at that speed. This is science (computer science, indeed). This is knowledge, and should be free. copyrights c. -- www.cesaremarilungo.com

On Wed, 2006-02-22 at 06:40 +0100, Cesare Marilungo wrote: Because they choose to do so. It is equally legitimate to choose to develop proprietary software. I happen to believe that in the long run open source will prevail over proprietary solutions on its technical merits. Just because we believe that open source is a better model, does not entitle us to force that on everyone. Lee

On 2/21/06, Lee Revell <rlrevell(a)joe-job.com> wrote: In my optimistic moments I completely agree with you.... In my pessimistic moments I think of what happened with LinuxSampler. When just a couple of people can change, or attempt to change, the licensing model for a piece of software I realize how fragile the Open Source model is. Add to that developers who choose to come and go for different reasons and it's mostly a disaster waiting to happen... In my thankful moments I think of the teams doing to biggest project and the individuals doing smaller projects and am amazed at all the great stuff people do... In my pragmatic moments I just use Linux, Windows and Macs to make me happy and don't worry too much about any of the above... ;-) Cheers, Mark

I do find it very admirable that they do are doing so. I have no quarrels about that - Linux is really nice stuff. My point is that there is a choice a software writer /plumber /electrician/carpenter can make. They can give away some or all of their Services / products for free - that is fine and a good thing. If that is their main trade and practice - who pays the bills??? There is no free lunch - SOMEONE is paying for it! Phil J. Ok, let's try to take the problem from another direction. What do you think is the reason some talented coders and some influential thinkers are putting a lot of efforts into writing and maintaining open source software if it is not the belief that sharing knowledge, solutions, tools and such is the way to go? Why Paul Davis started writing Jack and Ardour instead of writing another commercial DAW and then try to sell it to a publisher? pjfjacks wrote: c. -- www.cesaremarilungo.com

On Tue, 2006-02-21 at 22:23 -0500, Ross Vandegrift wrote: Any song, picture, or novel can be represented as an integer or a series of numbers in the same way. Check out Michael F. Barnsley and Iterated Fractal Systems. This is so specious it doesn't deserve an answer. Are you trying to say that there is absolutely no creative process involved in programming? Let's get into logic just a bit here. First, yes all programs can be represented by an integer. So can just about anything written or depicted as a picture. Just because a program can be represented as an integer does not mean that someone is trying to copyright a number. What you're doing is called reverse syllogism. It works like this: All dogs have a tail. That animal has a tail, therefor it is a dog. Or, to be more precise, in your version: All programs are an integer. That is an integer, therefor it is a program. I definitely accept ownership of software. If I didn't I certainly wouldn't be writing any open source software since ownership and copyright of that software is what protects my code from being usurped by any company around and used without my permission. Is that what you are advocating, that all software should be public domain so that companies that don't release source code can just steal it and hide it from you? Brilliant! A program is an artistic object or at least it can be. Any program that is above the complexity of "Hello World" will be programmed differently by any two programmers. My assumption from reading your responses is that you are not a programmer. I've been programming professionally (i.e. I get paid for it) for almost 30 years. On the bright side I do admire your signature tag ;-) -- Jan 'Evil Twin' Depner The Fuzzy Dice http://myweb.cableone.net/eviltwin69/fuzzy.html "As we enjoy great advantages from the invention of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." Benjamin Franklin, on declining patents offered by the governor of Pennsylvania for his "Pennsylvania Fireplace", c. 1744

On Thu, 2006-02-23 at 21:04 -0500, Ross Vandegrift wrote: I misunderstood then. I thought you meant it would be a program that actually did something. Just for grins I made a file with 1 byte in it. The byte contained the hex value 0x01. I made it executable and tried to run it. My system says - cannot execute binary file. Therefore this integer is not a program. While the above may be true in some cases it is not *always* a true statement. Nope, never heard of it. I thought an integer *was* an arithmetic statement ;-) Yeah, you can't trust those mathematicians ;-) -- Jan 'Evil Twin' Depner The Fuzzy Dice http://myweb.cableone.net/eviltwin69/fuzzy.html "As we enjoy great advantages from the invention of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." Benjamin Franklin, on declining patents offered by the governor of Pennsylvania for his "Pennsylvania Fireplace", c. 1744

I Am Not A Lawyer, but I've paid for enough legal advice on matters like this to recognize misinformation when I see it. On 02/20/2006 11:15 PM, fons adriaensen wrote: No, it isn't; licences are *not* contracts, and never have been. Licences are so called because they grant you permission to do something, but that's all they can do; they cannot oblige you to do anything. Furthermore, a licence agreement, no matter how sternly worded, cannot take away rights granted to you by other legal authorities. A contract *can* limit what you can do, but contracts require legal niceties, such as "a meeting of minds" and "consideration", neither of which are possible in a shrink-wrap licence agreement. Even if a licence agreement claims it's a contract, it isn't. For example, if your local laws already permit you to make copies of a CD for personal use, then an accompanying licence agreement that says you may not copy it is irrelevant, since you already have permission to copy it, and you don't need it again. No matter how much that annoys the CD's creators, they would have no legal power to restrict your copying when the law lets you do it anyway. Also, if a licence agreement only grants you permission to do something under certain conditions ("you may only run this software if you don't reverse engineer it"), you might be allowed to do it anyway, since there are many laws that already grant you permission to do things without needing to agree to the licensor's terms. So the GPL, under which Linux is distributed, does not grant you permission to *use* GPLed software, since you generally already have that permission if you acquired the software legally, and no licence agreement could take that permission away. But you *don't* have permission to distribute the software unless you accept the GPL, since nothing else already grants you permission to do it; this is the basis for the GPL's power in keeping software free. See a local lawyer for more details about what you're actually allowed to do with the stuff you've bought, irrespective of any bellicose legal verbiage that came with it. -- Frank Wales [frank(a)limov.com]

On 02/23/2006 01:37 AM, fons adriaensen wrote: I believe you are confusing some distinct issue here. To make my understanding of these issues clearer to you, here is a story: Joe buys a piece of software in a shop, takes it home and attempts to install it. The following dialogue appears on his computer: "This software is licensed, not sold. You may only install or use this software if you always wear a red hat. You may not lend, resell or give away this software. Clicking on the 'I agree' button below indicates that you have accepted these terms. Unless you click 'I Agree', you may not install or use the software." Joe clicks 'I agree' and proceeds to use the software for its intended purpose. Now answer these questions: 0) Did Joe accept the conditions presented to him? 1) Has Joe entered into a contract of licensing with the software vendor? 2) Is Joe required to wear a red hat while using the software? 3) If Joe does not wear a red hat, is he breaking the law by using the software? 4) Once he no longer wishes to use it, can Joe sell his copy of the software to his sister Jo? I believe the answers to these questions, at least in the USA and the EU, would be: 0) Maybe, maybe not. 1) No 2) No 3) No 4) Yes I base these answers on both legal advice on matters relating to the acquisition, development and supply of software over many years, and on my understanding of things like 17 USC 117 and the EU Copyright Directive 91/250/EEC. As I said before, I am not a lawyer, and this is not legal advice, but here is my attempt at explaining the above answers. If I purchase a piece of software, say in a computer shop, then take it home and get presented with an end-user licence agreement during installation of that software, the terms of that licence agreement have no effect on the pre-existing contract of sale. Vendors simply do not have the right to arbitrarily modify contracts of sale after the fact. Moreover, from my perspective, I've purchased a *copy* of the software, not entered into some kind of sub-licensing or rental agreement with the vendor. This is just the same kind of sale that happens if I buy a book or a DVD. Since everyone involved, up to the point of purchase, acted like it was a sale, it is, no matter what a piece of paper inside the box claims about it not being a sale. The contract of sale happens when the vendor, or their representative, takes my money and gives me the copy of the software, not at some random later time when the vendor deigns to present me with a bunch of conditions. I am unaware of any other forms of contract between a purchaser of software and a vendor that might suddenly pop into existence when a licence is presented to a user, nor does the earlier act of purchasing connote assent to the subsequent alteration of the contract of sale by such a licence. All the relevant legal advice I've had over the years indicates that the purchaser can take or leave the terms of the licence, and use the software they've already paid for anyway. For any licence to have an impact on the contract of sale, the purchaser must have been fully cognizant of its terms before payment. That software vendors generally don't make this possible tells you something about how confident they are in the reasonableness and enforceability of those terms. Even if licences were to be presented to purchasers before the sale, presenting them on a take-it-or-leave-it basis wouldn't help the vendors' position; they would probably be considered as so-called "contracts of adhesion", and as such would be much harder for the vendors to enforce anyway, even with the buyer's signature. In general (and certainly in the EU and the USA, I believe), consumers have the right to install, use, back-up, study and reverse engineer for the purposes of interoperability any software that they legally acquire a copy of, unless they specifically, and *before* agreeing to its purchase, negotiate away those rights. Clicking 'I agree' constitutes neither legal assent, nor a negotiation of any kind. I wasn't trying to bolster that point; I was trying to indicate that existing laws might already make the whole licence agreement moot, since you don't have to accept it to use the product as it is intended to be used. I wasn't suggesting that one should presume no obligations; however, a licence *cannot* confer obligations onto you. In a cattle market, perhaps, but I know of no circumstances where a contract can exist between parties when there is no "meeting of minds". This can only exist where both parties are fully aware of the terms being integrated into an agreement, which simply *cannot* be the case when a licence is not available to one of the parties until after the contract is enacted, which is the typical EULA scenario. "Quite clear" for buying software!? Where are you shopping? To give a counter-example that's germane to audio, certain famous audio sample libraries are sold in a shrink-wrapped box that has the following comedy legal sticker on the outside: "By opening this product you accept the enclosed license agreement" The enclosed licence agreement includes words to the effect that you have no right to re-sell the product. The problem for the vendor is that such a distribution constraint falls away at the time of first sale in both the EU and the USA, so such a restriction on the buyer is simply unenforceable. Moreover, I'm unaware of a court in the civilized world that would accept that *any* part of the associated licence agreement was enforceable, precisely because you must first accept it before you can read it. -- Frank Wales [frank(a)limov.com]

On 02/28/2006 11:22 PM, Jan Depner wrote: Oh, I didn't want to go near DMCA-type stuff, but I didn't consider that relevant to the general discussion. I take your point that, if you have to defeat an access-control mechanism to get to the underlying data, you're skating on thin legal ice, and you really *must* obtain good legal counsel, even in the EU. This is actually an area where software vendors have been abusing copy-control mechanisms, which were intended to prevent piracy, in order to deny paying customers their legal rights in property they have legitimately acquired. But it doesn't take away those rights, just makes it harder to benefit from them. Thanks very much; I'll try harder next time, Professor. ;-) -- Frank Wales [frank(a)limov.com]

Rob wrote: I am assuming you are talking about the US. I'm not certain that we could call 14 years a century. The first copyright act was passed (in the US anyway) just 14 years after we became a union and declared our independence. There is no reason to question the morality of it. The concept is what gives people incentive to produce with the idea that their work won't go unrewarded... ie being used by someone with much more money and resources as their own. I do agree with the concept of limiting the times to a vastly shorter time frame in order to encourage innovation even more. I like the time frame of (arbitrarily) 1 year. To remove the copyright capabilities would ensure that fewer people would care. I love free software of all types, I think it's a wonderful expression of kindness and giving back to the world. Make no mistake, if you remove all copyright law, you will not see the kind of freedom you want, you will see a tyranny you have never known. If you wish to talk only about the morality of it... what is the morality of a man and his family starving because he can't own his original works, but instead ViaCom (as an example) has invested millions in the advertising of it for their own profit... I should be able to own it and I should also be given reasonable time to recoup the cost of making said work... (once again I like a year).

Lee Revell <rlrevell(a)joe-job.com>om>: While you do have a point, I can't agree with this. In so far as moral can be applied here, restricting people from tinkering with the software they run is immoral, since it diminishes their freedom. Copyright, on the other hand, is an arbitrary monopoly instituted by the state.

Lee Revell <rlrevell(a)joe-job.com>om>: No. It is the of refusing others their freedom when it would have no cost to you is what is immoral. (I'm not counting the hypothetical cost of lost sales of copyright licenses, which as I pointed out are an arbitrary monopoly, not a moral right.)

Lee Revell <rlrevell(a)joe-job.com>om>: If you had read another three lines, you'd have seen I already answered that:

Lee Revell <rlrevell(a)joe-job.com>om>: Well, my argument was about morals. When you change the subject, you'll do well to announce it.

On Mon February 20 2006 16:43, Lee Revell wrote: Yes, just as how the source code to OpenOffice has allowed all of us hackers to roam around Sun's offices with impunity. Rob

Lee Revell wrote: Even worse. If you use proprietary software without paying for it, you're promoting it (in various ways, for instance telling people how you did your album) without having the cost into the equation. It's like saying that in this world if you want to make quality music you have to afford the price of commercial studio software and that putting out your album is more important than change this situation. c. -- www.cesaremarilungo.com

On Mon, Feb 20, 2006 at 10:42:58PM +0100, Cesare Marilungo wrote: If you are capable of making quality music and demonstrate this ability, you will not have to pay for anything. People will pay you to do it. And it doesn't take a commercial studio to make quality music. It takes some amount of talent, dedication and lots of hard work. -- FA

On Mon, 2006-02-20 at 16:16 -0500, Lee Revell wrote: Second that! Be ethical in whatever you do. I also have to say that if you can't find an open source package that does what you need and there is a proprietary one that does, then buy it. Programmers have to eat too ;-) -- Jan 'Evil Twin' Depner The Fuzzy Dice http://myweb.cableone.net/eviltwin69/fuzzy.html "As we enjoy great advantages from the invention of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." Benjamin Franklin, on declining patents offered by the governor of Pennsylvania for his "Pennsylvania Fireplace", c. 1744