The "Death Penalty"... [LWN.net]

The "Death Penalty"...

Posted Mar 25, 2012 23:08 UTC (Sun) by rqosa (subscriber, #24136)
In reply to: The "Death Penalty"... by khim
Parent article: Enforcing the GPL with Judo moves (The H)

> Are you cretin or just play one on TV?

Are you an IP maximalist, or do you just play one on TV?

> Can you imagine this dialogue in any court anywhere in the world?

Yes. For example:

Does the record in this case show that it is impossible for Plaintiff to prove particular instances of Defendant Howell’s illegal distribution of the copyrighted material through Kazaa, and the Defendant Howell is responsible for the absence of such records of distribution?

> This is novel interpretation to me. Citation needed.

Citation given:

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did).

Also, in their page titled "How To Not Get Sued For File Sharing":

Disable the "sharing" or "uploading" features on your P2P application, if your application allows it (see below).

> Companies do it all the time with updates. You can only download and use them if paid for the original. Otherwise it's considered piracy and can be prosecuted in court. This actually happens from time to time.

Citation needed.

> There are plenty of warez sites where you can download commercial proprietary software. People who did that end up in court and are fined regularly and §117 does not save them.

Citation needed.

> These two sentences form a license. It may not look like 100-pages commercial licenses, but it's license nonetheless.

Then here's a better example: this program is available for download from the developer's website, with a simple copyright statement ("© Roderz 2003" on the web page and "Roderz 2003" in the title bar) and no license text whatsoever. And this isn't the only example of a copyrighted work (software or otherwise) distributed by its author without any license (which is therefore "all rights reserved" by default, according to the Berne Convention).

No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system, without permission in writing from the publisher.

At least that's the status quo — but of course the likes of the BSA are doing everything they can to pressure every government into turning copyright into use-right. The public at large (and the FLOSS community in particular) needs to learn that it's in their interest to fight back against this, and then do so (e.g. by supporting the EFF and other such political organizations).

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The "Death Penalty"...

Posted Mar 26, 2012 3:17 UTC (Mon) by rqosa (subscriber, #24136) [Link]

A few more things:

> > There are plenty of warez sites where you can download commercial proprietary software. People who did that end up in court and are fined regularly and §117 does not save them.

Consider scenario 1: Person A hands a blank disc to person B, who copies a piece of software to the disc (in infringement of the copyright) and hands it back to person A. It seems obvious here that person B, not person A, is the one who's guilty of copyright infringement.

Now consider scenario 2: Person A initiates a download of copyrighted software from a server owned by person B, where person B doesn't have permission to distribute the software. The way I see it, this scenario is no different from scenario 1 as far as the law is concerned.

Maybe it's true that person A doesn't have the §117 rights (i.e. the right to make private copies) here because the initial copy received by A was made in violation of the copyright. However, now consider scenario 3: Person A initiates a download of GPL-licensed copyrighted software from a server owned by person B, where person B does have permission to distribute the software (because person B obeys the terms of the GPL). In this case, it's totally clear that person A has the §117 rights (which are not dependent on person A having permission from the copyright holder, and therefore not dependent on person A obeying the terms of the GPL).

(And as a side note: if it's indeed true that people who downloaded from warez sites have ended up in court and been fined, that doesn't necessarily mean that they actually committed copyright violation — they might just have opted to pay off the copyright holder rather than pursue a time-and-money-consuming legal battle.)

> this program is available for download from the developer's website, with a simple copyright statement ("© Roderz 2003" on the web page and "Roderz 2003" in the title bar) and no license text whatsoever.

For an example of how the copyright terms of this program could be "tested in court", suppose that some other developer made a commercial software package for A/V editing/transcoding which includes a bundled copy of Ac3fix and/or Ac3fixGUI. Then the author could sue this other developer to make them stop distributing the bundled copy or start paying royalties for it. But the author can't win a lawsuit against someone who has only downloaded it (from the author's own site) and run it on their own computer.

The "Death Penalty"...

Posted Mar 26, 2012 11:59 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]

in your example, person A may be getting stolen goods, but the question is if they have reason to believe that they are stolen.

This is where the German "obviously illegal" clause comes in

The "Death Penalty"...

Posted Mar 26, 2012 20:08 UTC (Mon) by rqosa (subscriber, #24136) [Link]

It's arguable that, in scenarios 1 and 2, person A was guilty of inducing copyright infringement by person B. But that's clearly not the case in scenario 3.