[ On Wednesday, May 24, 2000 at 13:08:11 (+1000), Robert Elz wrote: ]
> Subject: Re: license nits on "adzap" 
>
>     Date:        Tue, 23 May 2000 15:58:49 -0400 (EDT)
>     From:        woods@weird.com (Greg A. Woods)
>     Message-ID:  <20000523195849.487A4E8@proven.weird.com>
> 
> This will be the last I say on this irrelevant topic...

The relevance here is enormous.  Pkgsrc deals almost exclusively with
the care and handling of the work of others.  It is critical, at least
to me and hopefully to everyone who runs an anonymous FTP site that is
either in part maintained by the mechanisms of pkgsrc, or contains
pkgsrc itsef, that false and misleading information be propogated by
pkgsrc.

Furthermore the technical details of how pkgsrc deals with expressing
the type of license for each package, especially if it should become
common for folks to make their "distfiles" and "packages" directories
visible on their anonymous FTP servers, are critical.  I do this now,
though I am reasonably careful to manually protect the rights of authors
who have not granted redistribution rights where necessary....

While I am no great fan of "intellectual property" concepts in general I
do have a great deal of respect for creative people and thus I wish to
treat their works with care and to honour their wishes at least in so
far as they are covered by law and even in so far as they make sense to
me beyond the current reach of the law.  Copyright law is the least
onerous of the IP laws in common use and has in my opinion the best
balance of rights for creators and users both.

> What the library does is irrelevant, just as what the ftp server does
> is irrelevant, the two parties of relevance are the author, and the user.

Analogies are extremely useful, especially in this case where the actual
laws in most jurisdictions have almost nothing whatsoever to say about
this grey area occupied by what we often call "freeware" (i.e. software
whos authors make it freely redistributable but who are usually at least
peripherally concerned with retaining copyright ownership and
recognition, etc.).  The case of anonymous FTP archives is unique
w.r.t. copyright law and needs to be treated with care.

> Since photopiers were invented, I haven't seen a library without one
> (usually many).  If you feel inclined, you can go into a library, take
> a book off the shelf, photocopy the entire thing, and walk out with the
> copy, and the only thing in place to prevent you is likely to be a sign
> warning about copyright violations.

Most copyright laws that I'm aware of have had "fair use" clauses for a
*long* time now to deal with just this very issue.  You cannot legally
photocopy an entire work and walk out *unless* the library has an
arrangement to reimburse publishers (who will presumably pass on a
pittance of this profit to the authors too) using profits from their
pay-per-use photocopy machine.  This is quite common in academic
libraries but I'm afraid it may be less common in other less formal
scenarios, and of course most photocopy shops, especially those in
proximity of academic institutions, are more than willing to rob
students blind by charging per page to copy books (that can often be
found in used bookstores for half the cost) and they almost never have
profit sharing arrangements with publishers or authors.

> FTP servers are just the same, you can ftp in, and make a copy of
> something that is stored there,

FTP servers give exact duplicates of *entire* works -- something the
"fair use" clauses are very explict to *disallow*.

> and there might be a sign (banner welcome
> message...) warning you about copyright, it really doesn't matter.

It is not so clear as to whether or not such warnings are relevant, but
I do have the view that they can explicitly be ignored since it has come
to be that much of the "copying" that goes on from them is automated and
un-supervised.

> In both cases, unless the item in question has no copyright (so old
> that it has expired, or copyright protection has been waived), or you
> enter into some kind of agreement with the copyright owner, you have
> violated copyright.

On the contrary most "freeware" explicitly waives the right to control
redistribution in its "*copyright* license".

> It doesn't matter how much it looks as if the work was available for
> you to make your copy of, or how little protection there was to stop you.

That is not true.

There's a fundamental difference between "freely available" and "freely
redistributable".  One does not necessarily lead to the other,
especially in the case where some profit is to be made in the production
of collective works that include "freely available" works, and contrary
to the popular belief in some sectors of the Internet community that it
is okay to mirror any anonymous FTP site.

>   | Yes, but when the author makes figuratively infinite number of copies of
>   | his or her work available via an anonymous FTP server then that work is
>   | considered to be "freely available".
> 
> Considered by whom?   Do you ahve some kind of authority for that
> revelation, or is this just wishful thinking?

I have done extensive study of the Canadian Copyright Act and the laws
upon which it is based.  I've also informally consulted several members
of the legal community.  Although I have no formal legal training I do
have good reason to believe that what I have come to understand of this
law would be upheld should it ever be tested by a court of law, at least
in my own jurisdiction.
 
>   | Anyone who obtains a copy has a
>   | legally obtained legitimate copy of their own.
> 
> I doubt it.

OK, then let's be a little more clear:  Anyone who obtains a copy of
software from the author's own anonymous FTP server, or from any
"licensed" anonymous FTP server, has legally obtained a legitimate copy
of their own.

>   | It's like buying the
>   | book from the bookstore, not lending it from the library.
> 
> Not at all - when you buy a book you're (indirectly) entering into
> an agreement with the owner of the copyright, and you're giving them
> what they have requested (via the royalty payment most often) for
> their work.   You're also buying the physical paper that the book is
> printed on, but that part isn't material here, this is a discussion
> about intellectual property rights (copyright).

True.  You are also entering into an implicit agreement, under copyright
law, and under copyright law *ONLY*, when you FTP a copy from an
*anonymous* FTP server.  Note that anonymity is a fairly critical
component of this equation, especially in the case where anonymous
redistribution is explicitly permitted by the author.

>   | You never have to give your copy back, ever.
> 
> Sure, because that is part of the agreement when you buy the book - but
> it need not be that way, you could also just hire the book for a period
> of time, after which you have to return it.   That isn't done, because
> no-one wants that (there's no market) not because it would not be possible.
> It is done all the time with video tapes...

Irrelevant.

>   | It may not be freely copyable or re-distributable,
> 
> Exactly, because the author of the work didn't grant you those
> rights in your agreement with him or her.  Those rights could have
> been granted - most probably would be if you were willing to give
> enough in return.

Again this is where "freeware" is unique and as far as I know untested
by case law.

>   | but there's not a word of the copyright law that can
>   | be used to dictate what use the owner of a copy can make of it (eg. in
>   | the case of a book you can burn your copy (in private) should you
>   | please;
> 
> That's the paper.   And even that is not always true, think of a similar
> case, where the author of a work sends a paper copy to a publisher to
> be considered.   Does the publisher get to burn the copy if it pleases?
> These days probably it wouldn't matter, but authors used to send their
> only copy of the work away - buring the paper would also destroy the
> work, and that would not be permitted (the publisher would have to
> compensate not just the cost of the paper it destroyed, but also the
> value of the work contained in it).

Also irrelevant.  The example you give would have been explicitly
covered by separate agreement.  I know -- I've entered into such
agreements from *both* sides! ;-)
 
>   | and in the case of software you can execute it on your computer
>   | and make a million dollars through the function it provides, or take
>   | down governments, or whatever).
> 
> Only of the author of the work has given you the rights to do those
> things.  Some of them may sometimes be implicit, sometimes they need to
> be explicit.

Copyright law affords an extremely restricted set of rights to the
author.  Only those rights afforded need be explicitly waived.  All
other rights covered by the copyright law are explicitly retained
without need for explicit claim by the author.  Indeed in many
jurisdictions these days authors need not even put a mark on their
works (unless they've formally licensed them to a publisher for some
remuneration).

>   But you still need to have properly acquired the first
> copy,

Obviously, but....

> and simply copying it without thought ("it was just sitting there
> for me to copy") doesn't count...

Yes it absolutely does!  Especially when it is the author's own (or
licensed) *anonymous* FTP server!!!!

If this were not true then the entire concept of freeware would be
impossible.

>   | Exactly, but with freely and anonymously available software there's no
>   | contractual agreement to protect the author or control the owner of a
>   | legal copy -- just copyright law to prevent such a person from further
>   | distributing it
> 
> No, the copy that the copyright law protects is the first copy, when you
> obtained it in the first place.

You're still forgetting/ignoring the "anonymous" part.  It is in part
what makes this particular problem unique.  The law doesn't yet really
understand the concept that a creator would prefer to give away their
works and retain only the recognition of ownership (i.e. explicitly
avoid putting their works directly into the public domain).

>   Unless you have permission from the
> author to do that, which they can give or withold on any terms they like,
> you are violating copyright at that point.

Actually, no, that's not true -- the rights afforded by copyright law
are extremely well spelled out and they are not all encompassing.

>  Later distribution would be
> another copyright breach.

Of course, but I'm explicitly not talking about publication in any form
in that case.

I'm not sure of the exact state of laws outside Canada, but here in
Canada the copyright law explictily allows an owner of a legally
obtained copy of a software work to both:  a) use it for its obvious
purpose (i.e. execution in the owner's computer); and b) to make private
backup copies (more than one backup is fuzzy), *regardless* of what the
author might have expressed in the copyright license.  I.e. even if the
author says that the software cannot be executed for some purpose and/or
backed up, the owner can safely ignore the author's wishes on those
matters because the author is beyond the reach of the copyright law in
trying to retain those rights.

>   | (either verbatim or as a derivative work) or from
>   | using it to slander the author or otherwise claiming it to be their own,
>   | etc.  No restriction can be made on what's done "privately" with a legal
>   | copy (for example running sshd on a server is not covered by copyright
>   | law).
> 
> If you have validly obtained the copy, and are complying with any agreements
> you had to make to obtain the copy, then fine.

Which is indeed abundantly clear at least for almost all variants of
*copyright* licenses on available "freeware" (including the GPL).

> Aside from that, I think you need to contact an attorney, as I suspect
> you have aview of copyright law that would not be the same as that
> held by most courts.

To date I've been unable to find any case law that would apply (not that
I've personally done any searches, but I've been probing and asking
about for years now).  In the mean time I've not yet had any (Canadian)
legal expert I've informally discussed these matters with disagree with
me.  Whether I'm right or not is up for *you* and *your* attorney to
decide!  ;-)

(and of course I'm speaking to the group, and especially to those of you
who might be running anonymous FTP servers, or similar -- i.e. that's
the "royal you")

-- 
							Greg A. Woods

+1 416 218-0098      VE3TCP      <gwoods@acm.org>      <robohack!woods>
Planix, Inc. <woods@planix.com>; Secrets of the Weird <woods@weird.com>