Aaaarghhh!
by Chris on Jan.04, 2004, under General Thoughts and Rants
The author of a piece of software that i have used in the past to work on this site — TopStyle — wrote a fairly thought-provoking article on piracy a couple of days ago.
Now, i acknowledge that i am one of the people he talks about, and — let’s face it — i don’t really have a justification for it. I know that my use of my computer would be less enjoyable without some of the tools that i have … acquired … over the years, and the essential hypocrisy of my continuing to do so, in the face of my own philosophical objections to this sort of thing. My only defense is that, at such time as i am finished education and am making a living in the computer industry, i intend, more and more firmly, to pay for, register, and/or purchase each and every piece of software that i have enjoyed so much over the years.
Cold comfort, i know, for the shareware authors of today who are not benefiting from my patronage.
However, this moron [1] here just amazes me. How he can come up with gems like “Nick has no innate right to have people pay for his software, just as I have no right to ask people to pay for use of my name.” is completely beyond me - It shows a level of intellectual dishonesty that puts my own to shame here. This … kid writes software and calls himself a hacker, but seems to be of the opinion that software writers don’t have the right to restrict the uses to which their creations are put..
I wish i could write more, but damn, i’m mad about this…
Update:
I guess it wasn’t clear - the first link is to an article by the author of TopStyle and FeedDemon - software that i use. The second link is to a full reprint / comment on said article by Aaron Swartz, and this is the one that made me mad. Sorry about the confusion.
Update 2:
Further comment and very interesting discussion of this over at Don Park’s weblog, as well. I’m following this one, too, since it seems to be covering more or less the same ground as we are here.
Update 3 (Much later):
And I was reminded of this yet again by a Slashdot article today (Sept 13 2004) that linked to Brad’s postings. Regrettably, they ignored Aaron’s response, although predictably the posters on /. vented more or less what he did.
[1] Moron is a limited term, here - the man in question is actually quite intelligent - i’m referring to ethical intelligence here, not pure smarts. I’m actually really impressed with his accomplishments.
January 4th, 2004 on 1:13 pm
I read the second article and it seemed like the first part was written by a completely different person than the second part. On one hand, he’s arguing that people shouldn’t be allowed to use his name, then he says that he doesn’t have the right to charge people to use his name. Since I have no idea who this guy actually is, it seems to me that articles with misinformation about him really aren’t that important- but they might be. I don’t know. At any rate, anyone who uses the internet to do research, particularly from sites that are obviously not educational (university) sites or official sites (NASA, Canadian government, etc) should be aware that there is a strong possibility the information is wrong.
So, Chris, do you know if this guy is something special, or just a random someone whose name is getting used incorrectly? And it makes no sense that he’s upset that people are linking to his website, then he’s upset that no one’s reading his blog. Shouldn’t having people linking to your blog potentially increase readership?
Really, this was confusing as hell and I don’t see his point.
And if he wants software to be free, and he’s a software writer, perhaps he could distribute his software for free.
January 4th, 2004 on 2:50 pm
Cleared up, i hope…
January 4th, 2004 on 3:35 pm
no, no, no. I realize the 2 articles are by different people, but the second article is divided into 2 parts, and it also sounds like it’s written by 2 different people. Because he’s complaining about 2 completely contrasting things.
January 4th, 2004 on 4:07 pm
Chris, I’m not sure how I’m being intellectually dishonest. So you believe people have an innate right to control the use of their software, but not their name? Can you explain why?
mel, the first part was sarcastic.
January 4th, 2004 on 4:23 pm
Alright, i’ll debate this… In what way is one’s name a creation of one’s own?
If i create a work, be it software, published writing, or other work of the mind, i have a right to decide what the terms of use of it should be. Those may be extremely liberal—BSD license for example—or restrictive—MS-style EULA—but in either case, it’s the choice of the creator. Your intellectual dishonesty stems from attempting to throw up a straw man instead of meeting the argument head on. His desire to—and right to—ask for money for his work is real because it is his own labour. His name, alone, if only used as an identifier, is not. If used for credibility, though, it’d be the same thing. He has every right to ask that anyone using his work provide the payment he wants for it.
January 4th, 2004 on 5:52 pm
Aaron, I see that you are a very intelligent and have produced much in your life. Although I detest when people use this argument, It is very obvious that you have not spent a day outside the warmth and support of mommy’s house. When it is up to you to put food (but most likely computers) on the table and have had an opportunity to see the real ramifications of the society you wish would exist, then maybe you will be experienced enough to make the arguments you are making. Until then, no hard working adult will take you serously.
January 4th, 2004 on 7:06 pm
Chris is arguing what’s known as the sweat-of-the-brow theory of intellectual monopolies: someone who puts work into something deserves to control how it is used.
Taken to its extreme, this probably results in things you disagree with. (Michael Jackson has put a lot of money and work into his face. Can he charge people who distribute pictures of it? A newspaper reporter puts a lot of work into discovering a story. Can he charge people who repeat it.) And certainly, in the specific case of copyright, if Chris’s world was in place we’d have no libraries or video stores, and all the books at bookstores would be shrink-wrapped or behind glass.
By Nick’s reasoning, everyone who rents a movie from a video store or takes a book out of the library is a pirate, because they cost the author one potential sale (in the US, authors don’t get paid anything for library or video store rentals).
Chris, do you feel authors have a right to keep their book out of libraries? They worked hard on their book, shouldn’t they get to make the terms of use? If you don’t, how do you distinguish libraries from downloads? (It’s true that libraries don’t usually involve copies, but this is a practical distinction—quibbles like that don’t see like they’d interfere with a strong right.)
January 4th, 2004 on 7:25 pm
Copyright has a fair-use clause, and newspapers do often charge for reprints. The sweat-of-the-brow theory is not relevant; it is the intellectual property that is involved.
Aaron, the video/book rental theory doesn’t hold water I’m afraid. The movie company/book publisher has sold their product to the store/library for a profit (I don’t know about libraries, but rental stores pay massively more than retail to purchase a rental video) so the recompense is contained therein.
It was also their decision to do so. That is the material point. If a company believes that rentals take away from their sales, then they will not sell their product to rental companies. Nick has not offered his product for free, and so therefore has the right to do what he likes with it.
By the way, if someone misuses my name (defamation/false witness/misrepresentation/etc.) I can take action against them.
January 4th, 2004 on 7:29 pm
If rental companies pay extra, that’s stupid. They should just get one of their clerks to go to K-Mart and buy 12 copies. Is a rental company that does this evil? Would you boycott them?
January 4th, 2004 on 7:45 pm
Not evil, but immoral, sure.
If an author does not want his book available in libraries, then yes, it is his prerogative to restrict access to his work in that fashion. It’s not a wise idea, since many potential readers would then be prevented from seeing his writing, but he does have that option.
In the case of the rental issue, since movies are licensed in a way that permits re-rental of them only under certain conditions—ie: where a larger price was paid for the copy.
January 4th, 2004 on 8:01 pm
I don’t believe that’s true about movie rentals, the right of first sale allows you to do whatever you want once you buy something. Can you point me to something that talks about this movie licensing thing? I’m really curious.
Anyway, do you think the Michael Jackson and story reporting examples are immoral as well?
January 4th, 2004 on 8:15 pm
Actually, from a strictly legal standpoint, there’s questions about whether it’s legal to publicize photographs of private individuals without their consent, but public figures are in a different position.
With respect to the story, newspapers publish to the public domain, and public records of their output are kept. Different domain.
Furthermore, it’s worth noting that facts cannot be copyrighted; both the face and the story are examples of facts, and those are transmissible freely. Software, or the collation of facts with specificity—ie: a book on (topic X) or a newspaper’s specific editorial content—are works of the mind, and thus the products of their makers. Those can be restricted both legally and morally by their creators.
January 4th, 2004 on 10:18 pm
Yes, I’m well aware of the law, but you argued there was a moral right.
You don’t seem to have understood my newspaper hypothetical, so I’ll restate it: I spend months researching an important story. Finally, after great lengths, I confirm that Nixon’s team funded Watergate break-in, and I provide a chain of evidence to prove it. You run a rival newspaper and you verify all the evidence with your own eyes. Can you publish the story as well? I put a lot of work into that story, I don’t want you to copy it, even if you give me credit.
The fact that video rental stores are legal while peer-to-peer systems aren’t is an accident of law and technology. The law regulated copying while the computer systems required copies to do everything. If we had built our networks with superfast pnuematic tubes instead of wires, we could whisk CDs across them to share with others without violating the law at all. It’s hard to believe one system could be moral and the other not, simply because of this technological accident.
The fact is that there is no such morality behind copyright. Copyright is a recent invention, which originally only touched commercial publishers (of which there aren’t very many). This idea of their being some moral reason for it is even more recent. You won’t find it in any religion, or any old culture. It’s a silly idea, and it goes against our nature to share and build upon each other’s work.
What’s the moral problem with me downloading Nick’s software when there was no chance of me buying it? I get the software, Nick doesn’t lose any money and possibly gets some free advertising. It seems everyone is better off; how could this be immoral?
January 4th, 2004 on 10:23 pm
$79.95 for a utility? This kind of overpricing is why people don’t pay. For a commercial piece of software, the developer would get no more than 5% of the retail. Which makes TopStyle a $1,600 piece of software. Holy $#%&! The company that developed and maintained Freehand only got 4% of gross from Aldus.
TopStyle may be worth $49.95 as a commercial program. That makes the developer’s piece of the action $2.50 per license. To the extent that the developer has quality assurance, marketing, packaging, distribution, and support expenses, he could go up a little closer to the $49.95, but for these small-time operators, 50% of the commercial price is all that they can reasonably justify (quality assurance = release it and see what happens, marketing = the website, packaging = buttkis, distribution = dick). Support may be as good or better than commercial software, but to the extent the support is for dealing with bugs that the commercial guy’s filter out before selling, you can’t charge for it. And if the developer can’t make a living at these prices, he should go out of business: there’s not a sufficient market for the product. Happens to dry cleaners, pizza parlors, happens to software developers. I’m not crying for the guy.
As to what’s preventing him from releasing it and erasing hard disks: the DMCA and hard jail time. Go ahead, try that and see how far the Warez defense will get you.
January 5th, 2004 on 5:54 am
Aaron, are you rejecting capitalism in general, or just in regards to intellectual property? I kinda thought I as a seller had the right to put a price and terms on the stuff I sell, and you as the buyer have the right to not agree to my price/terms and thus not get the stuff. I just don’t get the “I have a right to not agree to your price/terms AND I have a right to take your stuff anyway” position.
January 5th, 2004 on 6:19 am
What’s the moral problem with me downloading Nick’s software when there was no chance of me buying it? I get the software, Nick doesn’t lose any money and possibly gets some free advertising. It seems everyone is better off; how could this be immoral?
***
This only works if everyone subscribes to this way of thinking. If everyone who used Kazaa only downloaded items they would not buy, there would be little financial impact.
But you know as well as I do that this is not the case. Let’s say everyone did as you believe you have the right to do. Let’s say no software developer charged for any software because they don’t have the right to.
What would pay for the R&D. What would pay for the deployment? What would pay for the support? What would pay the wages?
Even academic research is funded because of the hope that it will provide benefits for society. You take finanicial rewards out of research, and see how quickly it would dry up.
January 5th, 2004 on 7:04 am
@Phillip: Firstly, this also only works if the creator of the software is willing to accept it. That’s the fundamental unit of energy upon which the system is built. If the programmers stop writing software, that’s all she wrote, and all the free rides come to a stop, just like that.
Secondly, although there is no financial loss to the creator there, it’s still wrong. He put the work in, and has the right to determine how that work will be used.
@Aaron: I understood your example perfectly. I simply disagree. The argument is a specious one, for the same reason i tried to explain in my last comment: The facts are the same. If i “verify all the evidence with my own eyes” then yes, i do have the right to comment. Facts are not copyright. However, if i merely reprint verbatim your words, even if i verify the facts myself, that’s wrong.
What you’re misunderstanding is that there is a purpose to copyright. It is a legal implementation of a moral right. The creative energy of programmers, writers, artists, even photographers, is not a free resource, and is the property of those who create. To tell those that create things that their work is hostage to your definition of their rights is dishonest, and rather thug-like.
January 5th, 2004 on 7:54 am
Chris R. wrote:
Firstly, this also only works if the creator of the software is willing to accept it. That’s the fundamental unit of energy upon which the system is built. If the programmers stop writing software, that’s all she wrote, and all the free rides come to a stop, just like that.
***
Exactly the point I was making. Take a musician. If everyone pirated the music, we would have no new releases. Same with cinema, same with software. It seems it only works for the minority, not the majority.
January 5th, 2004 on 7:57 am
Fair enough – i probably read a bit more defense of the idea into your comment, Phillip. It does work for the minority, i guess, but it’s still, well, wrong. Which i didn’t really get from what you wrote, but i’m assuming that you are speaking about it pragmatically, as opposed to ideally, which is just as good.
January 5th, 2004 on 10:42 am
Jim, I don’t reject capitalism, I reject government interference in the form of granting monopolies that restrict my rights. I think that as a practical matter, the public is getting a raw deal by giving up these rights.
Philip writes: “If everyone who used Kazaa only downloaded items they would not buy, there would be little financial impact. But you know as well as I do that this is not the case.” I disagree. I think some people probably download things they would buy, but I’m pretty sure that put together it doesn’t make a significant impact. Do you have evidence that it does? (Even if it does have a significant impact, it’s not going to be much more than libraries have, yet we allow those!)
I think even if they weren’t forced to (because Kazaa was an option) people would still voluntarily pay a small, more reasonable amount (a little more the $2.50 on a $50 program that actually goes to the authors) to keep the authors going, especially if doing so was made real easy. (“Click here to send a dollar and I’ll stop nagging you forever!”)
Now we get to Chris, who contradicts himself but doesn’t see it. First he claims a simple moral principle: “Although there is no financial loss to the creator [], [copying is] still wrong. He put the work in, and has the right to determine how that work will be used.”
I applied this principle to the library, but Nick apparently wants to let authors ban those.
So then I applied this principle to the example of a hot newspaper story. I put in a lot of work to uncover the story and trace the trail. Why shouldn’t I have the right to determine the way that story is used, especially when I have a financial loss as well (when you copy my story, I might sell less papers)?
Now Nick drops his moral argument and points out that the law doesn’t cover this. But even if it’s not illegal, isn’t it immoral, Chris?
Taking Nick’s moral claim literally, the author can make me do whatever he wants in exchange for his work. (This is what the people in favor of “shrinkwrap licenses” want.) So to read a new novel, I might have to give up my firstborn son, or promise never to print a negative review. Wouldn’t that be great for movies! Reviewers can see a movie, but they’ll get their pants sued off if they try to print a negative review. (And folks won’t get outraged, since they’ll get sued if they reveal the no-negativity clause as well.) Is that the world you want, Nick? After all, they did put a lot of work into that movie. Shouldn’t they decide how it should be used? Anything else would be “dishonest, and rather thug-like”.
Somehow Chris R. has invented a new moral principle, without any justification or even agreeing with its consequences. I can justify other moral principles (murder and maiming is bad because it prevents victims from doing what they want, theft is bad because it keeps people from using their things) but Chris’s moral principle stops things which, he admits, cause no harm—and yet he calls me a dishonest thug for challenging it!
January 5th, 2004 on 11:32 am
I think we are getting slightly bogged down in specifics here. Firstly:
“Taking Nick’s moral claim literally, the author can make me do whatever he wants in exchange for his work […] I might have to give up my firstborn son, or promise never to print a negative review”
In this case you wouldn’t buy the book, pure and simple. The reason that these features are not applied to book purchases is that the authour would never get any compensation for his work (either monetary or the satisfaction of people reading it). The author wants this compensation, so we get reasonable terms on buying books. It’s simple econmics there.
“What’s the moral problem with me downloading Nick’s software when there was no chance of me buying it? I get the software, Nick doesn’t lose any money and possibly gets some free advertising.”
In that case, what’s the problem with me breaking into the local Calvin Klein shop and having off with a nice shirt and coat? After all, I’ve no intention of buying them. Perhaps I can even leave a few pounds behind; to cover the cost of materials. I mean, it doesn’t cost money to design these things, does it? Also that damn great logo on my chest will provide them with some “free advertising”
“I don’t believe that’s true about movie rentals, the right of first sale allows you to do whatever you want once you buy something.”
Reading a DVD of The Lord of the Rings I have beside me informs me that I have bought the right to watch the movies in private surroundings and not to rent or loan it to other people. My CDs, videos have similar disclaimers. You haven’t bought the film, just a licence to watch it in the privacy of your own home with friends. Morally, that is correct, because you are gaining just recompence for your outlay. Rental shops have to pay more because they will be renting them out and therefore gaining, subjectively, more out of owning the DVD.
As for the Newspaper example, sure it’s immoral. Yes, it is also legal for you to write your own version of the story using my hard found facts. You still have to write the story. In the case of software, you can copy what is there (think OpenOffice) completely legally, but you still have to apply your creativity to actually bring the software into existance. You can copy the ‘facts’, ie features, of another application, but not the ‘words’, or the code that is in it, if the licence forbids such copying. This would be true both morally and legally.
Taking this example to Nick’s software, he has taken features he likes, added his own and written the software. It’s your choice whether to pay for it. There are plenty of free editors you can use if you don’t want to pay for it.
January 5th, 2004 on 11:38 am
I think the big issue with piracy, P2P networks (they are separate things conincidentally, P2P is a great networking model), and its relationship to author ownership is that one has to face facts, regardless of whether you think it morally sound or amoral.
The situation is that unlike at any other time in history, protection of intellectual copyright is almost impossible today without inflicting restrictions upon the honest souls who tow the line and pay up for the authors creations.
What else has changed is the sheer scale of piracy, where just one person can have access to a pre-release build of some software, or a mastered DVD, a music CD, share the contents on a system like Kazaa, and within a matter of hours, thousands of people have it themselves. They share, and so it continues.
The problem is, software houses, music labels, film studios are still tackling the problem as if they can control it, as if they can eradicate it. Yet that isn’t possible, whether we like it or not. The only viable solution is to work with the access points to pirated information to formulate some kind of way so that the authors can be rewarded for their work.
Yet, take Napster. The RIAA sued, shut it down, and so users moved to a more “underground” network, that is, less centralised, and any centralisation based in non-US countries (like Jamacia), and so consequentely impossible to control. Now, imagine if the RIAA had worked with Napster to offer what is now in the relaunced Napster. It’s simply too late now as the opportunity to keep the image of Napster, and “Napster” as a buzzword is far gone.
Secondly, some music CDs now cannot be played on computer CD drives. Recently, I bought the Kings of Leon CD, took it home, and attempted to rip it to my hard drive as I do all music. I couldn’t do it. So, even though I purchased the CD, I resorted to using a P2P network simply so I could listen to it the way I wanted to. That’s plain stupidity.
Yet something like Activation, as used in many MS products today, I don’t mind. I’ve purchased Office 2003, and I want to know that my copy is protected…I don’t want to know someone else has just downloaded it for nothing when I did the legal thing. Which is why the “I wouldn’t have bought it” argument fails. If you wouldn’t have bought it, why download it or use it? Oh, you mean, you would have used it for free
When I was 15, I wrote some shareware. A product, ModemSpy, was cracked with a keygen appearing on some sites. Later, I found cracks to another product I wrote, KeepMeConnected. In the end, I decided any future software I wrote, I would release for free, as the costs of trying to protect the software outweighed any income I received.
I found more people downloaded it, more people talked about it, and more people enjoyed using it. Victory for me, or for the pirates?
January 5th, 2004 on 1:12 pm
I had a few useful comments to add to the conversation, but apparently my ideas were stolen (g) by Mike and used as his own. Curses!
Thanks, Mike, that said everything i wanted to say in reply and could not because i was taking class notes
January 5th, 2004 on 1:14 pm
“In that case, what’s the problem with me breaking into the local Calvin Klein shop and having off with a nice shirt and coat?” I thought it was obvious, but just in case: Calvin Klein no longer has the shirt. And many clothing stores do allow shoplifting for just this reason (it’s a form of price discrimination).
“Reading a DVD of The Lord of the Rings I have beside me informs me that I have bought the right to watch the movies in private surroundings and not to rent or loan it to other people.” It’s lying.
Philip is making the pragmatic argument, which is that Nick’s not going to eliminate piracy by whining about it so he might as well cut it out.
January 5th, 2004 on 2:13 pm
So essentially what it comes down to is that you disagree with them, there’s a conspiracy to fix prices by allowing the “elite” free stuff, and …
No, that seems to be all there is.
The DVD is not lying to you. The conditions on its box are the ones to which you agree implicitly by choosing to watch the movie.
Calvin Klein is not in posession of the clothes that bear his label. However, he is the creator of them, and entitled to compensation for his efforts. Furthermore, that compensation has already been paid to him by the store. Who then passes the cost on to you.
Phillip is also arguing from a very strong position: He created the programs, and decided—of his own free will—that the use of his program by others was reward enough for his work. It’s worth noting that the projects i’m working on will, themselves, be released under a BSD or freeware license. But that is my choice!! Not yours, because you didn’t do the work, and all the justifications you manufacture for yourself will not provide you the right to take that control away from me unless i give it up first.
There. is that clear enough?
January 5th, 2004 on 2:49 pm
The DVD is lying because its conditions are unenforceable in America—courts have repeatedly ruled that you cannot be held to a contract you didn’t agree to, and you can not be forced to agree to a contract to use something that you’ve purchased, even if such contracts were valid they’d be preempted by federal copyright law (17 USC 109 says you can sell or anything copyrighted), see Vault v. Quaid, 847 F.2d 255 (5th Cir. 1988).
But this form of lying is not new, many books lie and say things like “This book cannot be quoted in whole or in part without express written permission or for small portions in conjunction with a review published in an established newspaper.” I suspect that the people who write these lies think they might scare people, even though they are not actually true.
Getting back to the main theme, your point is clear, but wrong, and no matter how many times you repeat it you will not make it true. You are welcome to create whatever you want, but once you give it to me it becomes mine to do with as I please. If you sell me a painting, I can draw mustaches on it. If you sell me software, I can modify it. It is your choice to place it in the public discourse, but once you have, your rights terminate and none of your justifications will bring them back.
Is that clear enough?
January 5th, 2004 on 2:58 pm
Alright, for the sake of argument:
Suppose that i am a genius of unparalleled skill and knowledge. Suppose further that i have developed a process whereby every person on earth will be rendered well fed and healthy with only minimal personal cost, say on the order of a week’s work, plus or minus.
Suppose yet further that the development of this process took me years—even being the genius that i am—to develop.
And one last supposition: That the process in question can be told to someone in minutes, and be clearly comprehensible to all.
Now.
Given your beliefs on the value of intellectual property, motivate me.
Why should i give this to anyone other than myself?
January 5th, 2004 on 3:23 pm
Aaron, your version of capitalism seems to favor the consumer to an unhealthy degree. I also don’t really see why creators of intellectual property should get the shaft simply because what they create is easily and perfectly reproducible due to recent technological advances, while producers of material goods can keep doing business-as-usual simply because what they produce cannot be easily copied.
But suppose you get your way . . . Suppose we get fat bandwidth pipes to every home, and copyright, fair use, etc. is struck down. Do you think the biodiversity and quality of the intellectual/artistic ecosystem will improve or decrease? I’m inclined to think it’ll dry up, and if we need some laws to prevent that, I’m for ‘em.
Oh, finally, I don’t really see how Nick has a monopoly. He does not have such a large advantage that nobody else can enter the field. Indeed, I don’t see how he has a monopoly at all (assuming you were talking about him, given the context of this conversation).
January 5th, 2004 on 3:43 pm
The way I approach this, and many other problems like this, is to think pragmatically as its the only way these types of problems will be lessened.
First, I do think piracy is wrong. If everybody pirated, we would have nothing new. It also doesn’t fit in with how we function in society. A baker makes bread, I buy the bread. I make software, people buy the software, I then can buy the bread…etc.
Secondly, we’re all human. I do things I know to be wrong. You do things you know to be wrong. It’s human nature. We can change our morals to fit our desires. If we feel guilt, so much the better.
Thirdly, realising the 1st and 2nd points here does nothing to change the situation. Only by looking at what can be done will we achieve anything.
January 5th, 2004 on 3:51 pm
Aaron, I’m just wondering what kind of stores would let people steal CK clothing (as in your example). I’m not asking to be sarcastic; I’m really curious. Have you worked or shopped at these kind of places? I worked in retail for 7 years and I have seen people tackled by our loss prevention when they were trying to steal something, and I have seen fellow employees been escorted out of work by the RCMP (Royal Canadian Mounted Police, in case you’re not a Canadian and don’t know what that is) and brought to court on theft charges. I worked for a large chain, not just a small independent shop, so the whole company had this policy, not only my store. Not only was it not allowed to slip by security (providing they saw it) but it was pretty dangerous for the offender, given that the LPOs weren’t above tackling someone to the ground.
January 5th, 2004 on 3:52 pm
one of those sentences was grammatically incorrect. my bad.
January 5th, 2004 on 4:24 pm
Aaron said: “Getting back to the main theme, your point is clear, but wrong, and no matter how many times you repeat it you will not make it true. You are welcome to create whatever you want, but once you give it to me it becomes mine to do with as I please. If you sell me a painting, I can draw mustaches on it. If you sell me software, I can modify it. It is your choice to place it in the public discourse, but once you have, your rights terminate and none of your justifications will bring them back.”
No true. Nick doesn’t give up his rights just because he’s offered his software in a public area where you might be able to copy it. That’s the difference between transferring ownership, such as when you buy your copy of that painting, and buying a license to use a copy of something.
Besides, I’m not sure where you got the idea that “place it in the public discourse” should mean loss of ownership rights, but it just ain’t so…
Earlier you compared Nick’s claims to shrinkwrap. The problem with shrinkwrap isn’t the terms per se (though some are terrible), but that you can’t see them until you have already opened the package, thereby implicitly agreeing to something you haven’t seen. (also includes burying onerous terms in tons of verbiage so you just give up and agree without reading it all) Nick’s basic claim of “pay me X dollars if you want to use this” is simple and not at all shrinkwrap.
Lastly for now, if you want to try topstyle, download the evaluation/shareware copy. No need or justification at all to download warez for that. The only need to download a warez copy is if you already plan to refuse to pay for it. If you were planning to be honest about buying it if you use it, you’d have downloaded Nick’s TS shareware instead.
Aaron, it’s sure be easier to discuss this legitimately if you didn’t keep going off on unrelated red herrings. Sheesh.
January 5th, 2004 on 4:25 pm
Chris, I’d argue it would be immoral not to release the idea. However, there are many solutions. You could set a price and people could raise money to pay it and get you to tell them the idea. Or the government could pay for the idea. Or Bill Gates could. Or people could give you goods or sign contracts in exchange for it. All sorts of things, pretty much whatever you want can be achieved.
Jim, I think that the diversity will increase. If it dries up, then I’m with you—I’m all for well-designed narrowly-tailored laws to increase it without harming other people’s rights unduly. This is exactly how we originally got copyright. The invention of the printing press unduly harmed people who wrote books and decreased diversity, so we created a law that said you could make a deal with a single publisher to print your book for a while, and during that time no other publisher could publish it without your permission. It’s not that idea, but the expansion of it so that it stops me from doing harmless things, that I object to.
Jim, when I said he had a monopoly, I meant the government has given him a monopoly on his particular program, TopStyle—no one else can legally sell a copy of TopStyle.
mel, I’m getting this from Paul Graham who says “In No Logo, Naomi Klein says that clothing brands favored by ‘urban youth’ do not try too hard to prevent shoplifting because in their target market the shoplifters are also the fashion leaders.” I didn’t mean to suggest that CK does this specifically.
January 5th, 2004 on 5:32 pm
“The DVD is lying because its conditions are unenforceable in America — courts have repeatedly ruled that you cannot be held to a contract you didn’t agree to, and you can not be forced to agree to a contract to use something that you’ve purchased”
More than implicitly here, you explicitly agree to the contract when you purchase the DVD. I have a shrink-wrapped DVD here which clearly states on the outside that you are only buying a licence for “private home exibition only”. There is nothing hidden about this; by buying the DVD I explicitly agreed to purchase this licence and nothing else. You are not purchasing the film, merely a licence and a physical reproduction of the film to enable you to exercise your right of purchase.
“the right of first sale allows you to do whatever you want once you buy something”
Unless you contravene another law; in this case breaking the licence to only use the software yourself and to not distribute it. Even the pirated version contains the licence agreement which you explicitly have to agree to in order to install the software. Thus you are not covered by your case law, there is no attempt at misleading you.
I contribute to open source programs, all my programs are available for free, yet I still see that the work people put into making their software is not free. My programs are free because I find them useful and enjoyed coding them. I’m sure he has these reasons too, but Nick also wants to make enough money to put food on the table, is it immoral that he should want some reward for the time he puts into his programs?
January 5th, 2004 on 5:51 pm
Mike, shrinkwrap licenses are also unenforceable in most jurisdictions (see e.g. Stepsaver Data Systems, Inc. v. Wyse Technology, 939 Fd.2d 91 (3d Cir.1991)). Anyway, the fact that you can only use it for private exhibition is a matter of copyright law—it’s the cannot-lend provision I objected to.
January 5th, 2004 on 7:23 pm
Aaron, thanks for the reply, and I think we understand each other. Well, I think I understand better where you’re coming from, at least. Which is not to say I agree – I believe some actions you describe as harmless are harmful, but I’ll concede that at this time it’s hard to determine harm definitively (look at all the contradictory music industry studies). Me, I’m going to keep honoring creator’s wishes because it feels like the right thing to do (mostly – I’m not above creating mix CDs as gifts :-).
January 5th, 2004 on 11:27 pm
Aaron – it seems that you’ve mentioned quite a few times that simply because a law is unenforceable means that it is effectively non-existant. This is simply hogwash.
Just because you’re not going to be caught doing something doesn’t make it any more legal or right. Or whatever.
January 6th, 2004 on 4:37 am
“see e.g. Stepsaver Data Systems, Inc. v. Wyse Technology, 939 Fd.2d 91 (3d Cir.1991))”
From a quick reading of the case, this case is based on the fact the Stepsaver believed that they were offered different terms to those in the shrink-wrap because they were offered these different terms when they ordered the software over the phone, not because the shrink-wrap licence was inherently non-applicable. In fact the court ruled that it was a separate licence that Stepsaver could agree to instead of the one they recieve over the phone; they just chose not to.
For my DVD example, the licence is clearly there on the box when I buy it from the store, clearly forbidding me from renting or lending the item. I am under no other impression that the contract I am placing myself under is that I am free to lend or rent. Therefore, according to the above case law, the licence stands.
For boxed software, it says clearly on the outside that to use the software you must agree to the licence within to use the software, which you are given opportunity to read before using the software, therefore explicitly agreeing to the licence before using the software.
January 6th, 2004 on 4:59 am
Simon wrote:
Just because you’re not going to be caught doing something doesn’t make it any more legal or right. Or whatever.
***
America’s Patriot Acts (1 and 2) would appaul me as a British citizen and as a European.
Just because something is illegal (look at Camp X Ray) doesn’t make it wrong per say.
January 6th, 2004 on 5:00 am
Camp X Ray, as in, that totally immoral, disgusting court, yet allowed to happen under your law.
Legality != Morality
January 6th, 2004 on 7:22 am
A couple of minor things:
Phillip: Although i observe and comment on US laws due to both proximity and an understanding of the effect that US policy can have on nations that deal with it, i am not USian, neither is Simon.
Mike: The only issue with your reply on licensing—and thanks, btw, for reading that case and grokking it for us, personally i didn’t get around to it—is that software returns are frequently impossible if the license is disputed. I’m not sure what effect this has on the legality of the license, but it is an issue, as i understand it. Doesn’t justify the position that “All licenses are lying” in my ever so unhumble opinion, but there it is.
January 6th, 2004 on 1:36 pm
Phillip – I was in no way stating that everything that is legal is moral and that everything that is illegal is immoral. Your example is a very extreme case. All I’m saying is that Aaron’s assertion that just because he’s never been caught for something, that it is in effect legal is absurd.
January 6th, 2004 on 5:08 pm
Sorry! I was jumping to Americanism
Apologies