Posted by
Hemos
on from the what-else-should-the-code-do dept.
Bravo writes: "C|net has recently published an interesting
article
on abandonware and its legality. " They do a good job of covering both ends of the spectrum - the publishers who want to hold on to their old code, and folks who see it as being wasted.
The whole point of copyright is to encourage people to create. If they've abandoned their work, there's no need for copyright -- they've already gotten all the benefit they're going to get from it. --
> Perhaps, but it's their code, and if they don't
> want to share it that's their perogative, no?
Authorship is not equal to Ownership.
They Own Copyright on the code. They own hard drives and other storage media that conain the code. However, the code is intangible and cannot be owned.
The question is NOT whether they should be allowed to "Not Share". Of course they should be allowed to not share. The question is whether they shoul dbe allowed to stop others from shareing it.
Copyright says that they can. However, I would submit that this is a mistake. Copyright was invented to encourage publication by ensuring that authors have a way to make sure that they get paid for their work by publishers.
The reason that copyright holders are given this "right" is to give them temporary monopoly. However, if they are no longer using it, and they use copyright to stop further distribution, they are perverting and in fact working against the entire reason that copyright exists.
They are taking something that was given to them for one reason (making it safe for them to publish) and they are using it to stop the distribution of things that they have no intention of publishing again.
This is clear and simple abuse of the copyright system, and a shining example of why it needs heavy updating.
> Open source is a great concept - that still
> remains to be proven
I dunno.... I can go, find a free software program, I can download it. I can read the source, I can modify and redistribute it. I can compile and use it. Have done each at least once and some many times. Whats left to be proven?
That is of course unless you plan to judge Free Software by the standard marketspeak of "its more effcient" "it makes more stable code" and "bugs get fixed faster". Those may be yet to be proven absolutely...but they are all side effects of the system anyway.... more bonuses than central points.
-- "I opened my eyes, and everything went dark again"
Re:Purpose of Copyright
by
Floyd+Tante
·
· Score: 4
Intellectual property is
...a myth.
Just because a certain issue of a magazine is no longer on the shelves, does that give you the right to go out and copy it?
My actions are not bounded by artificial "rights" granted by others. I am, as a human, fully capable of exercising Reason in such issues. If you need something, why should anyone put up artificial barriers against it? It does nothing but hold back the progress of humanity, thus furthering the claims of those who benefit from the status quo.
For instance, what if you want Microsoft to open up Win 3.1?
Strawman. The Abandonware Movement is about free "beer" not free "speech".
How many out of print movies and books are there?
Too many. Movie companies usually destroy films when the copyright expires rather than allow them to enter the public domain. Is this "right"? Not even the most morally corrupt person could claim so much. -- Floyd
Most books and movies are out of print. If you look at the combined total of all books and movies ever made, most of them are not being sold anymore. So how do you read them or watch them? You go to used book stores, or the library. How do you get old software that isn't being published? They don't have software in the library, and it's hard to find good sources of used software. This sort of abandonment library is tremendously useful for society. It really is a public service. I think it's more than fair that they remove any software that the publisher complains about.
The more I think about it, the more I like this idea: have software for checkout in the library. The purpose of libraries is to provide free temporary access to copyrighted works. Why shouldn't they have software? Software publishers could produce special versions that require the CD to run (so people can't keep using the program when they return the CD). This would be really cool. Imagine going down to the library to check out the latest Redhat CD. Or checking out Diablo for the weekend. There's the danger of people abusing the system and copying the programs, but there is that danger with audio CD's as well and libraries still carry those.
I've run a Commodore 64 website for five years with a large collection of C64 software available. It has been my experience that most authors are pleased that their work has been preserved for posterity... I've even had a couple of original authors contact me and ask if there's anything they can do to help crack their old code to work on emulators. For this I am grateful. But, there are the occasional emails from authors/publishers that want me to remove a game or two, because they are still commercially available (Infocom adventures come to mind). I have no problem with this - they are still legally the owners of the work, and as I have no rights to their software (other than the license I purchased when buying the actual software), I respect their right to administer the copyright as they see fit. Personally, I think that's the way abandonware should be handled.
A better method would be to contact each author/corporation before posting it. While being inconvenient, it's really the best way to ensure you aren't violating anybody's rights.
Well, at least that would make it legal. But how effective would it be? Individual authors who want to see their works preserved for posterity would probably be happy to cooperate, but corporations wouldn't consider granting such permission without the approval of their lawyers and executives. Lawyers are usually loathe to forfeit any rights, on general principle. Executives are similarly loathe to forfeit any possible source of revenue, however small or theoretical. (Even if they don't choose to exploit it, they will rarely relinquish the right to do so.) Executives could potentially even be held liable by stockholders if someone concludes that they passed up a moneymaking opportunity. These things make it difficult and risky for corporations to be good citizens; the path of least resistance is to refuse permission, even if they don't actually care about the code anymore. The corporation might be willing to turn a blind eye (probably protesting ignorance of the flagrant copyright violation, and doing some symbolic sabre rattling when pressed), but asking them to grant express permission is asking a lot more of some (usually) conservative people.
Another possible problem is identifying the proper legal owner of the code; many old software companies have gone out of business, and finding out who inherited the intellectual "property" may be quite difficult. (Unfortunately, even if the actual author is sympathetic, some company or another usually owns the copyright and won't be as sympathetic, unless they still value that author.)
"It's easier to get forgiveness than permission." This seems to be the operating principle of these abandonware sites. Is it legal? Obviously not. Is it right? That's a moral question, and laws alone cannot answer moral questions. If they're not in it for a profit, and they're not harming the business of the copyright owners, and they're willing to remove anything by request of the proper owner, then at least it can be argued that their motives are pure. Legally, they're still at risk, and could take a fall. Or they could get away with it indefinitely. (Minors who run such sites may have some legal protection, unless tried as adults!)
--
Deven
"Simple things should be simple, and complex things should be possible."- Alan Kay
Legally very interesting indeed.
by
AndrewD
·
· Score: 5
Let's leave the criminal penalties out of it for a moment.
The civil measure of recovery for breach of copyright is one of:
Damages, so as to place the wronged party in the position he or she would have been in had the harmful act not occurred;or
Account of profits, whereby the wrongdoer has to pay over the entire profit made by the infringement.
So how, in a civil action, does the copyright owner establish an entitlement to other than nominal damages? He's not making any money at all off the abandoned software, so there's no possibility of damages. He can't say he's lost any fraction of zero sales that would sound in damages.
As to an account of profits, only those sites that actually make some form of money gain from offering abandonware are vulnerable, and at that there's a good argument that the profit is only that fraction of profit represented by the illegally distributed title. If there are thousands on the site and it's making peanuts, damages could well be very small indeed.
I would certainly be advising a copyright holder not to waste his money, were any of them to come to me over this sort of thing.
On the other hand, I imagine the criminal penalties for breach of copyright in the US are rather more fierce and fiercely enforced than they are here in the UK. It would be doubtful whether offering abandonware on the web, free at the point of sale would actually be a crime here, absent advertising to make it "in the course of a business". And even then you'd have trouble getting the weights and measures people interested - they're more interested in the pirate recordings and dodgy-chanel-perfume-made-with-air-freshener-and-c at-pee markets.
--
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Re:Legally very interesting indeed.
by
PhilHibbs
·
· Score: 4
So how, in a civil action, does the copyright owner establish an entitlement to other than nominal damages? He's not making any money at all off the abandoned software, so there's no possibility of damages.
If in getting a free copy of Word 2.0 I decide that I do not need to buy Word 2000, then they have lost a sale, and could claim the lost revenue from that sale. It's tenuous, but that's what expensive lawyers are for.
Re:Legally very interesting indeed.
by
Frater+219
·
· Score: 4
The softco's argument could be: 'The user used an old copy of Microsoft Word 2.0. This stopped them needing to buy
a copy of Word 2000. This denied us a sale.'
It is unreasonable to count old versions as competitors but not to count competitors as competitors. That is to say, a bootleg Word 2.0 denies WordPerfect a sale just as much as it denies Word2k a sale.
Enforcing Copyrights on Abandonware
by
meckardt
·
· Score: 4
Enforcing Copyrights on Abandonware is done for one reason only: control. Why would a company want to keep users from having access to old versions of software? So the users have to buy the new versions!
As a rule, new versions of software are more feature rich (read: fatter) and may or may not be more useful. But it is certain that the company that produces the new software can get a lot more money from it that they would if they kept selling the sold software.. Rather than sell and support both, they would just as well force you to upgrade.
Of course, that makes it hard to keep using those old Win3.x machines with currently available programs.
Gonzo
Copyobligation or Copyright?
by
BaronM
·
· Score: 4
As far as I know, copyright is an exclusive right conferring the specific power to prevent others from copying a piece of work. The fact the a copyright holder no longer wishes to provide copies is not an abuse of their right, it is straightforward exercise.
Maybe that shoudl change. Books go out of print, music stops being published, and software that is still useful dies because authors and publishers no longer have an economic interest in providing copies. In all cases, cociety is poorer for the loss.
Maybe copyright should be modified to impose an obligation to provide copies to all who are willing to pay for them. If an author wants to be released from their obligation to provide copies, they must release their copyright.
This is too simplistic, but cay you all see the basic idea?
What about abandoned music?
by
Remus+Shepherd
·
· Score: 5
There's a band I really like -- Big Daddy. (Not the current rapper known as Big Daddy, but a 50's style band of the same name who did parody songs in the '80s.) Big Daddy put out 4 albums, only two of which were released as CDs. The other two were vinyl-only...and are totally unavailable. The record company doesn't sell them, used record stores can't find them. Those songs are in serious danger of being lost forever.
And yet, if I were to rip my Big Daddy albums into MP3s, burn them to a CD, and give the CDs to friends so they can experience Big Daddy's music, I'm breaking the law. Yet if I don't break the law, this music will eventually disappear completely.
I have a hard time understanding how preservation of music or software became illegal. If the publisher doesn't supply or support it, and it's unavailable through normal means, why not let the public do with it what they will? There's no more money to be made on these works -- the creators aren't even trying to make money on them anymore. They should be in the public domain, and if the public wants to preserve them they should be allowed to do so.
Note that if copyright only lasted 15 years (as I believe it was originally written), Big Daddy's works would be in the public domain by now, and the public could rescue them freely. It seems as though copyright is interfering with the process of restoring and recording history.
-- Genocide Man -- Life is funny. Death is funnier. Mass murder can be hilarious.
One could compare this to a situation with out of print books. There is a definite owner of the IP, (s)he is still alive and owns the copyright, but the work is no longer commercially available. If there was a surge of interest in such a book, and I had a copy, I would never consider it acceptable to just scan it in and let people read it without asking the writer.
Thats the problem. Calling it "abandonware" makes it sound like a little lost puppy that you can't find its owner. They know who the owners are. Why not (scarey thought coming) ask them? The guy profiled in the article has ad revenue coming into his site. He is likely making money off of other people's IP. Why not send a form letter stating the purpose of the site, what titles they would like to feature and offering a profit share based on downloads?
In most services, requiring an "opt out" rather than "opt in" is considered predatory marketing. In a situation where the legal lines are so well drawn, simply offering to remove is not enough. There are ways to do this right, and making money off of doing it wrong is not aulteristic, no matter how you try to spin it.
Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole;
and
(4) the effect of the use upon the potential market for or
value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.
Copying abandonware is not commercial, and has no effect upon the potential market for or
value of the copyrighted work. So that's 2 of 4 points. I think it's not unreasonable to treat such copying as fair use. (Not all 4 points must be satisfied; courts will consider all of them and their relative importance in each particular case.) Granted, this is not scholarship or research or news reporting, but it need not be. For instance, backup and timeshifting are not mentioned here, but they were found to fall under fair use. --
Theft is illegal because it harms society as a whole. If I steal something physical from you I can't get as much for it with a fence as you could have gotten by selling it on the open market; thus the total wealth in society has decreased. A society based on theft would fail in a constantly spiraling decline of wealth as everyone stole from everyone.
Please note that there are people who do benefit from the theft of physical objects; the thief has and increase in wealth, and the manufacturer of the object benefits, since they get to sell another copy to replace the one which was stolen. This does not compensate for the direct loss of the victim, and the loss to society as a whole from the decrease in value of the original stolen object.
In the case of intellectual property just the opposite occurs. If I copy an existing disk the wealth of society INCREASES; there are now two copies of the original which can do more work than the previous existing copy could. Who loses? The owner of the disk does not lose, he still has his original copy. I benefit, I can now do something I couldn't do before. The only possible loser is the manufacturer of the software - who was deprived of an additional sale by my act of copying. Notice that I said the MANUFACTURER, not the CREATOR; there is a difference. Under the free market system the person who creates software is very rarely the person who benefits from the sale of that software.
Please note that in the case of physical theft the manufacturer benefits. I HAVE NEVER HEARD A MANUFACTURER COMPLAIN ABOUT BENEFITING FROM PHYSICAL THEFT. Have you? By failing to do so they lose the moral right to complain about the loss in sales caused by duplication of disks.
There is a critical difference between material goods and IP; in the digital world the digital equivalent of the 'Star Trek Replicator' exists, it is a CDROM burner or a floppy disk drive. Given a pattern to work from these can replicate the original. Think how much the economy would change if physical replicators existed. Manufacturing would become obsolete - each person with a replicator would in effect become a manufacturer.
What the software MANUFACTURERS want to do is to benefit from the fact that replication exists in the digital world while preventing everyone else from using their own replicators. Of course they do, if physical replicators existed physical manufacturers would try to keep people from using them while they got to use them to make outrageous profits.
Last year Microsoft had NET profits of 40% of sales. That is NET, not GROSS profits. The net figure comes after their accountants have pulled every trick in the book trying to reduce the number to minimize taxes. Microsoft's huge profit occur because they are using replication technology to build their product, it costs them less than a dollar to create a copy of a program which sells for hundreds of dollars.
Please note that the actual creators of the software are paid chicken feed to create the digital patterns which Microsoft turns into billions of dollars worth of profits by using their replicators, and forbidding us to use ours.
The free market system has worked well for us in the past when it comes to the manufacturing of physical goods. However it breaks down in the face of replication technology. We need to come up with a system which rewards the actual CREATORS of software instead of rewarding people who are using digital replicators to gouge the public for billions of dollars, while trying to deny to individuals the use of that technology.
Original Length of Copyright
by
Deven
·
· Score: 4
Note that if copyright only lasted 15 years (as I believe it was originally written), Big Daddy's works would be in the public domain by now, and the public could rescue them freely. It seems as though copyright is interfering with the process of restoring and recording history.
The U.S. Copyright Act of 1790 allowed for a 14-year duration (a quite reasonable timeframe and a good balance of author incentive vs. public good), with another 14-year optional extension (in the 14th year), for a maximum of 28 years, which is plenty of time to capitalize on a creative work. (Especially when you consider that businesses usually make their plans based on expected returns within 5 years or so!) Works had to be registered with the Copyright office to receive protection; many works entered the public domain directly because the author didn't bother to register the copyright.
Copyright has been extended many times since then for the further enrichment of the rich, with no consideration given to the balance inherent in the "bargain" between the author and the public that copyright is supposed to represent. It's been twisted into an entitlement in many people's minds, a tool to enrich a few at great cost to the public. Copyright extensions (especially the last one) are enacted to preserve corporate profits (and the GNP), public be damned. It's a gross perversion of a system that was originally designed to benefit the public, not to enrich authors and "IP" owners.
--
Deven
"Simple things should be simple, and complex things should be possible."- Alan Kay
From what I can tell from the article, the abandonware sites are possibly legal, despite what the software publishers say. The article also has some significant inaccuracies of law.
The article says: According to copyright law, the creators of intellectual property such as software, books, and music have full ownership of the property. This is wrong (at least as to U.S. law). The creators of a work have a large number of substantial rights, the most absolute of which is when or whether to publish the work. As an incentive to publish ("make public") the work, the government agrees to provide certain limited monopoly rights on the work for a limited time, and back those rights with the power of the state. However, those rights are limited in a number of ways.
Copyright expires - the U.S. Constitution explicitly mandates that copyright last for a "limited time", which Congress has chosen to currently set very, very long.
Copyright rights of the creator do not prohibit "fair use" by anyone else without permisiion of the creator.
Copyright rights of the creator do not prohibit certain types of copying by libraries and public archives. This limitation is very relevant to the discussion of abandonware. More below.
The "first sale" doctrine and section 109 of the law prevent creators from restricting re-selling of a work, or (for most works, with some important restrictions) the lending or renting of the work. (Programs and sound recordings can't be rented commercially.)
There are some incredibly arcane rules that I don't begin to understand allow some re-transmissions of (lawfully) transmitted works.
Composers MUST license their published songs and other music (excluding operas and other "dramatic" musical works) under terms of a compulsory license for making "phonorecords" (sound recordings - tapes, records, CDs, etc.). The rate of payment is fixed by an arbitrator.
Publishers of "phonorecords" must license them for use in commercial jukeboxes, but have the option of trying to negotiate a deal that suits them better than the deal set by the arbitrator.
Owners of a copy of a computer program may make whatever copies of a program are essential to its use, or may make (an unspecified number of) backup copies. Section 117
The copyright on a building or other architectural work doesn't prohibit pictures or other images of the work (as long as it's constructed and in public view).
If the rights or a right to a work have been transfered (sold, licensed, or otherwise) an author or his statutory heirs may terminate (undo) the transfer unilaterally without compensation, within a window of 35 to 40 years after after the transfer. An author may waive this right by contract but cannot do so on behalf of his statutory heirs.
In other words, copyright ain't property like personal property...
But back to "abandonware". Section 108 of the copyright law says that, among other things, libraries and other publicaly available archives may (under section e of the law) make a complete copy of a work that they have determined is otherwise unavailable at a fair price and give it to a library user, provided a) they do not do so for commercial advantage and b) they display a particular notice as specified by the Copyright Office in 37 CFR 201.14 (PDF, scroll down to about page 20). The full text of the section e) reads:
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if-
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
Important: other parts of the section and of the law influence the legal interpretation of the above (so consult a lawyer), but the important point is, "abandonware" sites CAN be legal!
Slashdot Mirror
The whole point of copyright is to encourage people to create. If they've abandoned their work, there's no need for copyright -- they've already gotten all the benefit they're going to get from it.
--
--
Mod up a post Rob doesn't like and you'll never mod again
--
Let's leave the criminal penalties out of it for a moment.
The civil measure of recovery for breach of copyright is one of:
So how, in a civil action, does the copyright owner establish an entitlement to other than nominal damages? He's not making any money at all off the abandoned software, so there's no possibility of damages. He can't say he's lost any fraction of zero sales that would sound in damages.
As to an account of profits, only those sites that actually make some form of money gain from offering abandonware are vulnerable, and at that there's a good argument that the profit is only that fraction of profit represented by the illegally distributed title. If there are thousands on the site and it's making peanuts, damages could well be very small indeed.
I would certainly be advising a copyright holder not to waste his money, were any of them to come to me over this sort of thing.
On the other hand, I imagine the criminal penalties for breach of copyright in the US are rather more fierce and fiercely enforced than they are here in the UK. It would be doubtful whether offering abandonware on the web, free at the point of sale would actually be a crime here, absent advertising to make it "in the course of a business". And even then you'd have trouble getting the weights and measures people interested - they're more interested in the pirate recordings and dodgy-chanel-perfume-made-with-air-freshener-and-c at-pee markets.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Enforcing Copyrights on Abandonware is done for one reason only: control. Why would a company want to keep users from having access to old versions of software? So the users have to buy the new versions!
As a rule, new versions of software are more feature rich (read: fatter) and may or may not be more useful. But it is certain that the company that produces the new software can get a lot more money from it that they would if they kept selling the sold software.. Rather than sell and support both, they would just as well force you to upgrade.
Of course, that makes it hard to keep using those old Win3.x machines with currently available programs.
Gonzo
Maybe that shoudl change. Books go out of print, music stops being published, and software that is still useful dies because authors and publishers no longer have an economic interest in providing copies. In all cases, cociety is poorer for the loss.
Maybe copyright should be modified to impose an obligation to provide copies to all who are willing to pay for them. If an author wants to be released from their obligation to provide copies, they must release their copyright.
This is too simplistic, but cay you all see the basic idea?
There's a band I really like -- Big Daddy. (Not the current rapper known as Big Daddy, but a 50's style band of the same name who did parody songs in the '80s.) Big Daddy put out 4 albums, only two of which were released as CDs. The other two were vinyl-only...and are totally unavailable. The record company doesn't sell them, used record stores can't find them. Those songs are in serious danger of being lost forever.
And yet, if I were to rip my Big Daddy albums into MP3s, burn them to a CD, and give the CDs to friends so they can experience Big Daddy's music, I'm breaking the law. Yet if I don't break the law, this music will eventually disappear completely.
I have a hard time understanding how preservation of music or software became illegal. If the publisher doesn't supply or support it, and it's unavailable through normal means, why not let the public do with it what they will? There's no more money to be made on these works -- the creators aren't even trying to make money on them anymore. They should be in the public domain, and if the public wants to preserve them they should be allowed to do so.
Note that if copyright only lasted 15 years (as I believe it was originally written), Big Daddy's works would be in the public domain by now, and the public could rescue them freely. It seems as though copyright is interfering with the process of restoring and recording history.
Genocide Man -- Life is funny. Death is funnier. Mass murder can be hilarious.
Thats the problem. Calling it "abandonware" makes it sound like a little lost puppy that you can't find its owner. They know who the owners are. Why not (scarey thought coming) ask them? The guy profiled in the article has ad revenue coming into his site. He is likely making money off of other people's IP. Why not send a form letter stating the purpose of the site, what titles they would like to feature and offering a profit share based on downloads?
In most services, requiring an "opt out" rather than "opt in" is considered predatory marketing. In a situation where the legal lines are so well drawn, simply offering to remove is not enough. There are ways to do this right, and making money off of doing it wrong is not aulteristic, no matter how you try to spin it.
Kahuna Burger
...will work for Chick tracts...
Yes, but it is not immoral. Sometimes laws have to change. And more often than not it is necessary to break them in order to change them.
--
--
Please note that there are people who do benefit from the theft of physical objects; the thief has and increase in wealth, and the manufacturer of the object benefits, since they get to sell another copy to replace the one which was stolen. This does not compensate for the direct loss of the victim, and the loss to society as a whole from the decrease in value of the original stolen object.
In the case of intellectual property just the opposite occurs. If I copy an existing disk the wealth of society INCREASES; there are now two copies of the original which can do more work than the previous existing copy could. Who loses? The owner of the disk does not lose, he still has his original copy. I benefit, I can now do something I couldn't do before. The only possible loser is the manufacturer of the software - who was deprived of an additional sale by my act of copying. Notice that I said the MANUFACTURER, not the CREATOR; there is a difference. Under the free market system the person who creates software is very rarely the person who benefits from the sale of that software.
Please note that in the case of physical theft the manufacturer benefits. I HAVE NEVER HEARD A MANUFACTURER COMPLAIN ABOUT BENEFITING FROM PHYSICAL THEFT. Have you? By failing to do so they lose the moral right to complain about the loss in sales caused by duplication of disks.
There is a critical difference between material goods and IP; in the digital world the digital equivalent of the 'Star Trek Replicator' exists, it is a CDROM burner or a floppy disk drive. Given a pattern to work from these can replicate the original. Think how much the economy would change if physical replicators existed. Manufacturing would become obsolete - each person with a replicator would in effect become a manufacturer.
What the software MANUFACTURERS want to do is to benefit from the fact that replication exists in the digital world while preventing everyone else from using their own replicators. Of course they do, if physical replicators existed physical manufacturers would try to keep people from using them while they got to use them to make outrageous profits.
Last year Microsoft had NET profits of 40% of sales. That is NET, not GROSS profits. The net figure comes after their accountants have pulled every trick in the book trying to reduce the number to minimize taxes. Microsoft's huge profit occur because they are using replication technology to build their product, it costs them less than a dollar to create a copy of a program which sells for hundreds of dollars.
Please note that the actual creators of the software are paid chicken feed to create the digital patterns which Microsoft turns into billions of dollars worth of profits by using their replicators, and forbidding us to use ours.
The free market system has worked well for us in the past when it comes to the manufacturing of physical goods. However it breaks down in the face of replication technology. We need to come up with a system which rewards the actual CREATORS of software instead of rewarding people who are using digital replicators to gouge the public for billions of dollars, while trying to deny to individuals the use of that technology.
Note that if copyright only lasted 15 years (as I believe it was originally written), Big Daddy's works would be in the public domain by now, and the public could rescue them freely. It seems as though copyright is interfering with the process of restoring and recording history.
The U.S. Copyright Act of 1790 allowed for a 14-year duration (a quite reasonable timeframe and a good balance of author incentive vs. public good), with another 14-year optional extension (in the 14th year), for a maximum of 28 years, which is plenty of time to capitalize on a creative work. (Especially when you consider that businesses usually make their plans based on expected returns within 5 years or so!) Works had to be registered with the Copyright office to receive protection; many works entered the public domain directly because the author didn't bother to register the copyright.
Copyright has been extended many times since then for the further enrichment of the rich, with no consideration given to the balance inherent in the "bargain" between the author and the public that copyright is supposed to represent. It's been twisted into an entitlement in many people's minds, a tool to enrich a few at great cost to the public. Copyright extensions (especially the last one) are enacted to preserve corporate profits (and the GNP), public be damned. It's a gross perversion of a system that was originally designed to benefit the public, not to enrich authors and "IP" owners.
Deven
"Simple things should be simple, and complex things should be possible." - Alan Kay
The article says: According to copyright law, the creators of intellectual property such as software, books, and music have full ownership of the property. This is wrong (at least as to U.S. law). The creators of a work have a large number of substantial rights, the most absolute of which is when or whether to publish the work. As an incentive to publish ("make public") the work, the government agrees to provide certain limited monopoly rights on the work for a limited time, and back those rights with the power of the state. However, those rights are limited in a number of ways.
- Copyright expires - the U.S. Constitution explicitly mandates that copyright last for a "limited time", which Congress has chosen to currently set very, very long.
- Copyright rights of the creator do not prohibit "fair use" by anyone else without permisiion of the creator.
- Copyright rights of the creator do not prohibit certain types of copying by libraries and public archives. This limitation is very relevant to the discussion of abandonware. More below.
- The "first sale" doctrine and section 109 of the law prevent creators from restricting re-selling of a work, or (for most works, with some important restrictions) the lending or renting of the work. (Programs and sound recordings can't be rented commercially.)
- Creators may not restrict or prohibit certain non-profit/educational performances or displays (e.g. a girlscout camp can sing copyrighted songs without paying a royalty).
- There are some incredibly arcane rules that I don't begin to understand allow some re-transmissions of (lawfully) transmitted works.
- Composers MUST license their published songs and other music (excluding operas and other "dramatic" musical works) under terms of a compulsory license for making "phonorecords" (sound recordings - tapes, records, CDs, etc.). The rate of payment is fixed by an arbitrator.
- Publishers of "phonorecords" must license them for use in commercial jukeboxes, but have the option of trying to negotiate a deal that suits them better than the deal set by the arbitrator.
- Owners of a copy of a computer program may make whatever copies of a program are essential to its use, or may make (an unspecified number of) backup copies. Section 117
- The copyright on a building or other architectural work doesn't prohibit pictures or other images of the work (as long as it's constructed and in public view).
- Copyright owners can't prohibit taping for the blind, under certain circumstances.
- If the rights or a right to a work have been transfered (sold, licensed, or otherwise) an author or his statutory heirs may terminate (undo) the transfer unilaterally without compensation, within a window of 35 to 40 years after after the transfer. An author may waive this right by contract but cannot do so on behalf of his statutory heirs.
In other words, copyright ain't property like personal property...But back to "abandonware". Section 108 of the copyright law says that, among other things, libraries and other publicaly available archives may (under section e of the law) make a complete copy of a work that they have determined is otherwise unavailable at a fair price and give it to a library user, provided a) they do not do so for commercial advantage and b) they display a particular notice as specified by the Copyright Office in 37 CFR 201.14 (PDF, scroll down to about page 20). The full text of the section e) reads:
(e) The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her request or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price, if-
(1) the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
Important: other parts of the section and of the law influence the legal interpretation of the above (so consult a lawyer), but the important point is, "abandonware" sites CAN be legal!