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. --
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.
--
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.
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.
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.
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...
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!