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From: sean@ms.uky.edu (Sean Casey)
Newsgroups: comp.sources.d,trial.misc.legal.software,gnu.misc.discuss
Subject: Re: Reve: Invalid restrictions on usage.
Message-ID: <sean.657750642@s.ms.uky.edu>
Date: 4 Nov 90 20:30:42 GMT
References: <16309@s.ms.uky.edu> <21712:Nov412:17:2190@kramden.acf.nyu.edu>
Organization: The Leaning Tower of Patterson Office @ The Univ. of KY
Lines: 79

I am crossposting this to gnu.misc.discuss because the LPF people might
be interested in some of the misunderstandings people seem to have about
the limitations of copyright law. If it's inappropriate, let me know and
I'll send a cancel and repost.

brnstnd@kramden.acf.nyu.edu (Dan Bernstein) writes:

|In this case, the authors have granted you the right to distribute the
|sources, with certain qualifications. One of those qualifications is
|that you may not enter the program in a tournament.

|Sorry, Sean, but that's perfectly enforceable.

It's not perfectly anything. Such use comes under the provisions of
use, not copyright. I can take a disk with a legally obtained copy of
the program, and insert it in a machine for the purpose of playing a
tournament round.

You should know that the act of copying a program into ram or a cpu
for the purpose of executing the program is a necessary step in the
use of that program. Copyright law cannot forbid you to do this as
long as your copy is legally obtained. You cannot sell someone a book
and forbid them to open it.

This is a use issue, not a copyright issue.

|But we're not talking about a license here. The authors are simply
|limiting their exclusive copyright, and they can do so in any way they

The problem here is people don't seem to understand exactly what
rights copyright law can limit. See a copyright lawyer if you don't
believe that copyrights cannot limit use. Once you own a copy of
something, the author can't dictate your use of it; you may use it in
a competitive business, to engage in practices the author doesn't
ethically agree with, or even to participate in an othello tournament.

Copyright law was designed to protect the ability to profit from a
unique work. It does this by limiting the right to copy and or
publically show a work (1).

Recently, two new uses of copyrights have appeared in the computer
world: conditional redistribution, and use clauses. Conditional
redistribution, such as the GPL or Dan's copyright, is a tool well
founded in the spirit of copyright law. Instead of protecting profits,
in this case, it protects against profits.

Use clauses, on the other hand, do not fall into the realm of
copyright law at all. Some shareware authors have used these to demand
payment for use. Some freeware authors have used it to deny uses they
disagree with. None of these restrictions are valid. Copyright law does
not limit these activities. Only a license can do that.

Even so, we must not ignore these claims because of the litigious
nature of the business. Suppose a large corporation or wealthy
individual starts putting these use clauses in their copyright and
then sues individuals for violating it. Most people cannot fight a
lawsuit, even one based on vapor.

Thus it's important that people know what rights authors are allowed
to take away from them, and what rights cannot be taken away.
Otherwise, the people with the money and lawyers will eventually force
us to behave in ways that are convenient to them. Look at how Lotus
has bent the interpretation of copyright law. If you don't think it
can be done, start reading the papers.

|You may copy and distribute this article for profit if you are not named Sean.

Small excerpts are permitted under Fair Use :-P.

Sean

(1) The public showing of a work, such as showing a movie in a
theater, or showing HBO in a bar, does not have a good analogue in the
computer software world. Running a program on a machine, even if
thousands of people are looking at the machine, is not displaying the
work unless some sort of copyrighted display is visible.
-- 
***  Sean Casey <sean@s.ms.uky.edu>
***  ``Aaaaaa!'' -James Brown