BitKeeper, Linux, and licensing disputes: How Linus wrote Git in 14 days (Graphite blog)

Unusual, but not impossible. If, after refusing to sign an NDA, you went into place where normally you are only admitted after signing an NDA by getting special permission from CEO and then used the fact that other people have no idea that you haven't signed it to reveal secret information… the question of legality of what you did would be raised and the question of that you are getting classified information that normally requires an NDA using ignorance of someone would definitely be raised.

No. That was precisely about access.

Field had actual knowledge of the Googlebot. He also was aware of the ways to prevent Google from either listing his site at all or listing it but not providing a link to the cached version. Instead of opting out, however, he chose to allow Google to both index and provide a link to the cached version.

HTTP protocol was designed with the ability to prevent Googlebot from accessing the web site. And since Field refused to use that ability Google got it's implied license.

BitKeeper protocol haven't included such ability, at least publicly, and the question of whether the fact that after connection to it one may see the prompt and interact with it is enough to give you an implied license is very much an open quesion.

Sure. But LWN uses protocol which was designed and used by the World-Wide Web global information initiative since 1990 and follows appropriate conventions, etc.

Since the main purpose of such web server is to be publicly accessed (it's literally designed for that!) I have the right to access it. That's called an implied license: if I buy an audio CD then it may say “all rights reserved”, but it's designed to be played on a CD player thus natural assumption would be that in spite of that test I'm permitted to do that.

Similarly with web sites.

But BitMover site haven't used well-known protocol designed to be used by third-party applicatins, now did it?

And Andrew haven't owned said server (this is what grants SAMBA an implied license to access Windows Server: this thingie is sold as server, as something you may use to store files… and if your OS doesn't have any official means of doing that then you may need to write some program to access such servers).

So… what gave him the right to access it? Fact that after he connected and typed help server responded?

Sure, that strongly hints that said server was designed to be accessed… but is it enough to grant Andrew implied license or not? No one knows. Only court may decide.

Because if you take copyrighted materials from someone's else's servers and copy it to your computer then such use requires a license. Explicit or implied.

Usually it's implied, but that doesn't mean it's not license or that it's not needed.

Where does it say that? I've read that assertion approximately bazillion times, but have never seen anything that permits you to connect to unknown server using an unknown protocol when you don't have a license to connect to it.

When you are using known protocol (like SMTP or HTTP) you may argue that specification for that protocol which usually includes words that explain why it exists and what can you use it for (like: transfer mail reliably and efficiently or HTTP has been in use by the World-Wide Web global information initiative since 1990, which, then allows you to bring documents related to said initiative and go from there). Legally all these talks are congregate on the implied license.

But if you are connecting to random server using random protocol… what give you the right to do that?

Explicit exception for reverse engineering is only applicable when you have a license to access something but have no technical means to do that. Well… where is the license that Andrew Tridgell used to be able to lawfully access BitMover server, hmm?

Sure, but I'm yet to see a case where it was successfully used to circumvent the license. Every time someone tries to make Google Earth client, or YouTube client, or SharePoint server they are asked for a license first. Then en exception for reverse engineering and other such exceptions start to matter.

That's why this Microsoft and Google dance around YouTube haven't ever raised the question of YouTube servers being publicly accessible and thus reverse-engineerable.

No, you need a license first. Then you can start your reverse-engineering activities.

If you don't have a license and copy something then it may become a crime if transgression is large enough.

If you do accept a license and violate it, then it would be a different crime.

And since these are different crimes discussion becomes ambigious.

BitMover says that it only offers one license which gives Andrew the right to work with their servers and Andrew violated that license.

And Andrew argues that he never signed by that license thus he shouldn't be bound by it's terms.

Sure, that means he, potentially, may be fined $200 to $150,000 for each “work” that he infringed, but how many are there? Would that case be better represented in court is violation of the license or as unlicensed access?

Thus would depend, very much, on the attorney and details said attorney would use in court… but since accusations never reached the court we couldn't distinguish between these two possibilities.

It's more about INDUCE Act which was deemed unnecessary because §106 already says that only a copyright owner has the exclusive rights to do and to authorize any of the following (emphasis mine).

Said act was overreaction to the Napster case and an attempted to make people liable when they just only provide things like sha1 sums which make finding copies easier without directly prompting anyone to make any copies.

That was deemed to be overkill and wasn't added to law. But when you impersonate someone to do a copyright violation on your behalf… that's still forbidden. You can find long history with many laws and court cases in the Wikipedia.