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From: ewiles@netxdev.DHL.COM (Edwin Wiles)
Newsgroups: comp.sources.d
Subject: Re: Paying for Shareware (Was: Re: v09i070: newsclip 1.1...)
Message-ID: <2930@netxcom.DHL.COM>
Date: 15 Jan 90 20:43:32 GMT
References: <2719@netxcom.DHL.COM> <4781@itivax.iti.org> <2793@netxcom.DHL.COM> <25B09FA1.5E13@telly.on.ca>
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Reply-To: ewiles@netxdev.UUCP (Edwin Wiles)
Organization: NetExpress Communications, Inc.
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evan@telly.on.ca (Evan Leibovitch) writes:
> ewiles@netxdev.UUCP (Edwin Wiles) writes:
> >	Perhaps they are not the best examples possible, but your above
> >	argument is IMHO a slightly concealed argument that software is
> >	not property, and it is therefore OK to make a copy of it to do
> >	with as you wish.  It's still stealing property.
>
>You just can't claim theft, when:
>a) The recipient did not request the item;
>b) You do not make any attempts to control its distribution;
>c) The other person's use does not deprive YOU of your enjoyment of it;

I debate point (a) further down...

On point (b):  The author HAS made an attempt to control it's distribution by
putting an appropriate and correct copyright notice on the product, and stating
the rules under which it can be distributed.  Until such notices are tested in
court (unlikely, since shareware authors are not known for having deep pockets
to pay for lawyers with), it is both prudent and proper to consider them
binding.  NOTE: Many if not most shareware notices in current use are neither
appropriate nor correct, thus invalidating them.  However, the INTENT is clear
enough that one should feel morally obligated to abide by the intent, if not
legally so bound.

On point (c), this is again simply a veiled argument that software is in some
fashion not property, and is therefore "fair game" to 'steal'.

>Before you start gratuitously using terms like theft, remember that in
>many jurisdictions, you are allowed to refuse payment for, and *keep and
>use*, unsolicited material, regardless of how it got to you.

Here we get into an argument about what is "unsolicited", which will no doubt
keep some future lawyers quite busy for quite some time.  However, I will
attempt to debate this as follows (this also applies to point (a) above):

	Your arguments are based on the usual concept of "mail", in which
	I will agree that what you receive "unsolicited" is indeed yours
	to do with as you wish without payment to the sender.  HOWEVER, Usenet
	News is not "mail", it is rather a "broadcast" medium.

	By analogy, consider the broadcasts of the National Football League
	in the U.S.A.  Each such broadcast, at some point in it, contains a
	statement that you cannot rebroadcast, or otherwise use it without
	permission to do so.  I have no doubt that such a statement is legally
	binding, and should I break it, I would find myself in court on the
	"sharp end of the stick".  Notice that I did not "request" that
	broadcast, I merely had a receptor tuned to recieve it.  It is still
	not mine to do with as I wish.

	Comparatively, I did not request the article containing the software
	in question, I merely had "a newsgroup set to receive it".  Since the
	article(s) in question contain a copyright notice, with appropriate
	clauses regarding its use and distribution, I am likewise bound to
	those terms.

>If you go the shareware route, your costs are lower, but you are counting
>on nothing more than the goodwill of your users, that they share your ideas
>of the product's value, and the righteousness of support the author by
>following instructions to send money.

Incorrect.  You are indeed counting on the goodwill of your users, but IMHO
you are legally entitled to have your users pay you the fee requested if
they do indeed keep and use the software in question.  If they do not pay
the fee, then they may NOT use the software.  The only reason that "goodwill"
comes into play is that it seems most people find that software, since it is
so easy to copy and use, is not property in some sense.  It is indeed property
and using it without paying for it is indeed theft, unless the creator has
placed it in public domain.  A shareware author who places an appropriate and
correct copyright notice on his work, with appropriate and correct clauses
regarding distribution and expected fees for use, has NOT placed his software
in the public domain.  Even though it has been transmitted by a broadcast
medium.  Consider, Walt Disney Co. broadcasts "Sleeping Beauty"; is "Sleeping
Beauty" then in the public domain?  Go ask Walt, I expect the answer will be
a resounding NO!  And the courts will back them up if needed.  The main
difference between Walt Disney Co. and a shareware author is their ability to
pay for lawyers to enforce their copyrights.

>As a shareware author, you have no recourse to their actions,

Only because shareware authors are not rich.

>Using guilt, threats, or unenforcable legalese, to me, is the easiest
>way to get people's backs up and *ensure* you won't get a cent from them.

"Unenforcable legalese" is only unenforceable when it is either badly written,
or in direct contravention of the existing laws, or when the author has no
money to enforce them.  If the copyright is written correctly it is indeed
legally enforceable, but the usual shareware author can't because he can't
afford to.  Not because it's "unenforceable legalese", but because he can't
come up with the money to do so!

I hope sooner or later some big company with lotsa cash decides to put this to
the test.  Find some shmuck who's received their shareware, failed to pay for
it, while still using it beyond the limits set forth in the copyright notice,
and nail him to the legal wall.  I suspect that this is the only thing which
will convince people who "want what they want, when they want it, and figure
that that makes it legal".

>Choosing to go the
>shareware route is easier and cheaper for the author, but takes control
>of the product completely out of the author's hand.

As stated above, when the copyright is appropriately and correctly written
the control is NOT taken out of the author's hands, except by those who
figure that since the odds of them getting caught are so slim that they
can therefore do as they wish with the software.

> > [...Electronic distribution being much cheaper...]
> [...for the author only...]
>It can be more expensive to the recipient and sites along the way with no
>interest in it.
> > [...statement that the only costs you can complain about are your own...]
>
>But I *am* part of the community, and I share the community-wide costs
>in addition to those I bear personally. How can you state that people
>have no responsibility to their greater community, especially on a
>network which dpends so much on goodwill and co-operation as Usenet?

Very well.  Instead of stealing from shareware authors because (generically,
I'm not accusing ANYONE) you think you can get away with it, help the
community to come to a viable alternative.

Suggested:

A) Create comp.shareware.sources, and comp.shareware.binaries, with the proviso
that although they are logically part of one of the major topics they are not
among the "required" set.  This is already done by Gene Spafford (forgive me
if I've misspelled your name), via his "checkgroups" message, for a number of
"internet gateway" groups which do not appear in the checkgroups message but
which ARE under the major topic of "comp.".  (I know, I've been helping our
"news" Site Admin to keep our 'active' file reasonably complete.)

B) Make it against the 'rules' (such as we have in this anarchy of a network)
for shareware to be posted to any other group(s).

C) To make it easier on the comunity to 1) figure out who to send software
to, and 2) to parse out those pieces which they desire from the 'shareware'
groups.  Allow them to send their software to the exisiting moderators for
the various sources/binaries groups.  Who can then determine that the software
is shareware, and post it to the appropriate "comp.shareware" group with the
subject line modified to indicate whether it's for "amiga", "ibm", "unix", or
etc...

The above scenario would allow those of us who desire shareware be posted, even
when it's of no use to us personally, to continue to receive it.  While those
who are incensed over shareware postings to keep them off of their machines
by not recieving those groups.  And yet we who desire it, can still easily
separate out those packages which are of interest to us from the mass of those
which are not.

>>	You don't like paying a few cents for distribution of shareware?
>>	Then bill the author!  But I think it would cost you FAR more to
>>	bill the author than you would obtain in *reasonable* fees for
>>	distribution.
>
>I have an implicit agreement with my Usenet neighbours (upstream and
>downstream) that I neither pay nor charge for newsfeeds (beyond what Ma
>Bell gets). I have no such agreement with the shareware author.
>Therefore, by the above scenario, my only ability to recoup costs is
>from the account holders on this system (who did not ask for the
>shareware to be transmitted to this system) or the author (who did make
>such a request by posting it.)
>
>(Speculation: if sites carrying shareware started charging shareware
>authors, and courts upheld even a few of the charges as legitimate, what
>would that do to shareware's benefit of lower costs to the author?)

Go ahead!  Bill the authors, if you so desire!  I still believe that the
majority of sites would expend FAR more money attempting to recoup distribution
costs than the costs themselves, thus it is more cost effective to NOT bill
the author.

You speak of "community" above, have you not considered the overall costs to
the "community" if you do charge the authors?  Your speculation above about
rising costs of shareware to cover distribution fees is quite to the point.
If sufficient sites started charging for distribution of shareware the cost
would indeed go up, and the "community" as a whole would suffer far more from
excessive software costs than you would recoup for distribution of that
software.

>>       NOTICE!  Commercial outfits (like UUNET, CI$, etc.)
>>	CANNOT charge for the distribution, as they already recoup their
>>	costs from the sites which they are transmitting to.  (Weellll,
>>	maybe the could try, but they'd have a rough time in court.
>
>Court has nothing to do with it. CI$ will charge as much as their
>customers are willing to pay. UUNET will charge what *they* think is
>reasonable.

The point being that UUNET does not, and probably cannot, charge the author
for distribution of shareware because they already recoup all their costs
from the fees normally charged to their users.

>>	As I said previously, about the only thing you could legitimately
>>	do would be to deduct the *reasonable* distribution costs that YOUR
>>	site encountered in obtaining the software.
>
>And if I bear part of the cost of distribution but don't use the
>shareware, are you saying I have a right to bill the author a reasonable
>amount for transmission and storage costs? I can live with that, but I
>somehow doubt that Brad, Ross and other shareware authors will be enthused
>with the idea.

I do so believe that you have the right to charge the shareware author a
reasonable fee for transport.  HOWEVER, I believe that the cost to recoup those
fees from the shareware author would be FAR more than the fees themselves!
Thus it is more economical to NOT attempt to charge for transport, etc...
Instead, write those costs off as a BENEFIT to the "community" you mention
above!  You're benefiting the community as a whole by helping to keep shareware
software fees low!

You're probably right that Brad, etc.. would not be enthused over the idea.
But they ARE making use of your resources to conduct an enterprise which
although it may not actually be profitable, is intended to produce a profit.
As such you can attempt to recoup costs for your services that were performed
in support of their activity.

As an additional instigation to NOT charge for transport of shareware, consider
your own suggestion that the authors broadcast information on the software and
then await responses.  In all likelyhood, such responses and conversations
regarding the software would take place on the network.  It is also quite likely
that the software itself would be sent via Email.  Now, consider the costs to
the network with ONE BROADCAST copy of the software, for which each site
effectively pays for 'once'.  Contrast that with MULTIPLE copies of the same
software being mailed to the specific users who requested it.  Which is likely
to cost more to the "community"?  Sure, you can state that the authors should
use alternate means, like direct dialup, and/or mail to send the software where
it belongs, and many of them do!  But not all of them will....  Consider the
costs to the community then?

>The three stages of man:     | Evan Leibovitch, Sound Software
>1 - Believes in Santa Claus  | Located in beautiful Brampton, Ontario
>2 - Doesn't believe in Santa | evan@telly.on.ca / uunet!attcan!telly!evan
>3 - Is Santa Claus           | (416) 452-0504

( P.S. I *LIKE* your "signature"!  Good "three stages"! )

	"Who?... Me?... WHAT opinions?!?"	| Edwin Wiles
    Schedule: (n.) An ever changing nightmare.	| NetExpress, Inc.
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