Ethics and Piracy

[Urban Ranger]

Originally posted by asleepathewheel
I think its far more inaccurate to state that they are invalid on their face, which is what UR stated orginally which set off this barrage of legal blah blah. Far more inaccurate is actually being generous, as courts have upheld them, again look to ProCD.

Courts have also struck them down.

Originally posted by asleepathewheel
What is inaccurate about what I've said?

You contended that EULAs are generally enforceable, which is inaccurate.

Originally posted by asleepathewheel
I have gone through the cases quoted to me and explained what the reasoning and the repurcussions.

The problem is EULAs are by and large very harsh and oppresive -- go way beyond customary contract laws. It also seems there are more cases where the rulings are against EULAs than upholding them. In fact, in the cases where they were found valid, they were just covering old grounds, and probably were not necessary.

[asleepathewheel]

Originally posted by Urban Ranger
UCITA is supposedly an extension of the UCC that were to be adopted by various states individually. However, the formulation was such that it basically legitimize EULA as valid contracts regardless of opressiveness and other factors. So far most states have not adopted it, and it is generally considered a failure.

yeah I read up on it later, seems like a pretty bad deal. I knew a few of the people on NCCUSL, the group that drafted it (former profs) wish I could ask them about it. Passed in Maryland and Virginia (probably AOL and similar lobbyists in those tech heavy states). Failed in a couple more and counter legislation passed in a few more. Knowing two of the people on NCCUSL, I'm suprised that they would be so bought by the corps and be so near sighted. Disappointing, I'm glad I didn't personally care for either prof

Pretty dopey stuff, how it would disclaim damage done to your computer and would allow for more bugs as you would be buying it "as is".

[asleepathewheel]

Originally posted by Urban Ranger
Courts have also struck them down.

You contended that EULAs are generally enforceable, which is inaccurate.

Sure courts have struck some parts of them down, just like any type of contract case.

EULAs are generally enforceable. They are not enforceable when they are unconscionable, ie violate public policy, however that's a very difficult standard to satisfy. Its very rare, especially in a merchant to merchant exchange to prove unconscionability.

And you have to realize that when those parts of the EULA are struck down, the rest remains intact. Ie, If you win a case on part of the EULA, say to benchmark (like in one of your examples) WinXP, then you can benchmark it. However, you still are bound by the agreement not to dissasemble or reverse engineer the code. So even if you get a part struck down, you are still bound by the vast majority of the EULA. Hence the generally enforceable part.

I think we'll just have to agree to disagree on this. I enjoyed the sparring, its good to keep me on my toes, however I feel like we are begining to beat a dead horse on this one.

[Urban Ranger]

Originally posted by Whaleboy
Not to me, hence my argument that information once publicised is free as in GPL free. I guess we'll have to agree to disagree there.

I still think it's problematic to consider all information is free (not free as in speech, but free as in price, thus the GPL comparison is a bit off) regardless of the intention of the originator.

Originally posted by Whaleboy
One can still of course be paid for ones efforts using the model I proposed, where one is paid a sum to write a book (and communicates it to the publishers so they might offer another commission), who then produces a load of books and sells them yadda yadda.

That's not the model that should be used on a distributed distribution medium such as the Internet however.

Originally posted by Whaleboy
True, it's not exact, but my point is unaffected imo.

Again, it seems ethical to respect the wishes of the originator. If he expects payment, on what grounds could you argue against it?

Originally posted by Whaleboy
When it comes to information (and I assume consent to release it and sound mind), then yes it is ethical.

Only when said information is released to be used free of charge. The GPL can only be valid if the orginators of said information retain copyrights.

Originally posted by Whaleboy
By definition (mine), they are. One can either attack my distinction or my definition.

There are problems with your definition. You rely totally on the mode of operation instead of intention, but that is dangerous. Suppose you lose a notebook in the public. By your definition, you have released that into the public domain, but that's probably not what you want.

Originally posted by Whaleboy
Creativity could be argued to be finite but I describe it more as an emotion, or a disposition of the artist, that is not being sapped by my reading of his product. It cannot be capital except to oneself in other words.

It's not just an emotion or disposition though. Suppose you write a science fiction story, complete with characters and plots. All that takes resources on your part.

[Ned]

Reverse engineering for purposes of "interoperability" is specifically authorized by public policy. Thus it is not true that reverse engineering clauses will generally be enforceable except to the extent that it aids in suppressing piracy.

[asleepathewheel]

Originally posted by Ned
Reverse engineering for purposes of "interoperability" is specifically authorized by public policy. Thus it is not true that reverse engineering clauses will generally be enforceable except to the extent that it aids in suppressing piracy.

Please provide a citation. I love reading up on this stuff and I love being exposed to new knowledge, but I need background material to check out.

What is interoperabilty? I have no clue what that means or a context its used in. Perhaps this is another case of us talking past each other. I was referring to something like MS would do with windows. Free to use as you will, not free to crack the source code.

I don't mind being wrong, hell, you learn more from being wrong than being right, if you aren't afraid to admit it. I just need some sources to check out to see where my knowledge is lacking. I have enjoyed this debate, think I've personally learned a lot about things, which is why I'm here

[Ned]

Read Sega v. Accolade, a 9th Cir. opinion. Also, the Millenium Copyright act has a specific exception to permit reversing engineering for this purpose. Ditto the corresponding European directive.

[asleepathewheel]

Ned-

Are bootlegs considered piracy by either the Feds or the RIAA or artists individually?

I know that some groups actively encourage boots, by letting people tap into the sound system directly (DMB, Phish, etc).

If you are prohibited technically from boots, what about non album songs. Like covers and non released songs.


Just technically speaking on all of the above, I don't know where the RIAA stands on such matters. I know where I stand, I love listening to live concerts and the variation from the studio albums...

[asleepathewheel]

Originally posted by Ned
Read Sega v. Accolade, a 9th Cir. opinion. Also, the Millenium Copyright act has a specific exception to permit reversing engineering for this purpose. Ditto the corresponding European directive.

Interesting stuff.

I found this recent case (2003) Bowers v Baystate 1st circuit I believe, which upholds a EULA reverse engineering clause.

Apparently the distinction is that the previous case, Sega, was a pure copyright issue, in which the interoperabilty is an exception to normal copyright laws (ie, there was no contract issue at all). The bowers case involved an actual contract, the EULA ( I guess the other case didn't have a contract preventing this?) So what I'm getting from this is, Federal Copyright law will preempt everything, so you would normally be able to reverse engineer due to the interoperabilty exception, however this right to reverse engineer can be "negotiated away" ("" of course because its not truly negotiated ) through contract.

Of course who knows how another circuit would rule. And this doesn't seem sexy enough yet (nor enough circuit disagreement) for the supremes to rule on.

Thoughts?

The case: http://caselaw.lp.findlaw.com/script...1108v2&exact=1

[Ned]

Asleep, anything done without authorization of this nature is copyright infringement.

The problem, of course, is that there is no effective remedy is the bootleg copy is simply shared by people on the internet. That is the issue of this thread.

The bottom line is that the law should conform as best as possible to the facts on the ground, so to speak. Otherwise, people will simply break the law and respect for the law as a whole will diminish.

[asleepathewheel]

Originally posted by Ned
Asleep, anything done without authorization of this nature is copyright infringement.

This was what I was looking for.

I just wanted the technical rules without the commentary, as the commentary has rehashed points that have been discussed ad nauseum in this thread and elsewhere.


(if that came off a bit harsh, my apologies., not intentional

[Saint Marcus]

if I go to an art-shop, make a copy or take a picture of some famous painting, and hang it on my wall...is that stealing/piracy?

No. It's not even illegal.

I could even ask a painter paint me a copy of it. And that's legal too, as long as I don't try to sell it as an original.

So why is making a copy of a song or movie illegal?

[Urban Ranger]

I don't think it's illegal to make copies. It's only illegal when you sell the copies.

However, I think this thread was about the ethical basis of copyrights.

[Aeson]

Some questions for those claiming that piracy is ok because the product may or may not be valuable, and so a 'free trial' is in order to determine it's worth.

Do you apply the same logic in reverse, that you will compensate the author(s) of the product according to it's value even if that exceeds the original price? Have you ever paid more than the asking price for a cd, game, book, or movie because you enjoyed it a lot? Do you seek out the owners of web sites you enjoy, paying them for their service, or make sure to follow all the links to advertisers/sponsers who allow them to run their site? Your favorite game, how many hours of enjoyment did you derive from it? Hundreds? Thousands? And yet what compensation did you offer the author. $30-$60?

If you want our economy to function in a manner where intellectual property laws are not necessary, you need to first act in a manner which would support such an economy. That means donating to charity, because we all benefit from other people's actions throughout our lives. Without that benefit we never would never even see our second day on the planet. It means honestly evaluating both physical and intellectual property that you receive through any method, and doing your utmost to make sure that you offer compensation for that value in your life whether it is demanded from you or not. That means producing value with no guarantees that you will be compensated for it, submitting your work to society as a gift and trusting that the same will given in return.

If anyone can honestly say they live their lives this way, I'll agree with you that ethically you should be receiving the value in your life free of charge, because you are giving it free as well.

[Ned]

Originally posted by Saint Marcus
if I go to an art-shop, make a copy or take a picture of some famous painting, and hang it on my wall...is that stealing/piracy?

No. It's not even illegal.

I could even ask a painter paint me a copy of it. And that's legal too, as long as I don't try to sell it as an original.

So why is making a copy of a song or movie illegal?

Saint Marcus, the copyright in "famous painting," if it ever did exist, probably long ago expired.

But, assuming it did not, the photo or painter's copy is in fact a copy that is infringing. The question is whether your use of the copy is fair use.

Assuming copyright has not expired, hanging the copy on the wall rather than paying for the original is copyright infringement.