Slashdot Mirror
The DMCA Vs. Small Developers
bumppo writes "Matt Warner, a Mac developer and IT guy, writes about his experience trying to use the DMCA against a much larger software company that unilaterally lifted his TV tuner/converter app and bundled it with their hardware product, even hawking it on the side of the box. He explains why he didn't get very far, and sees plausible implications for the GPL." One lesson here seems to be that though registration of copyrighted materials may not be necessary for them to be given legal protection, it goes a long way toward preventing such usurpation. (Note that the FSF is careful to copyright the code it releases under the GPL.) And DMCA or not, shareware and other non-retail software has been incorporated into collections without permission quite a bit before.
This reminds me of something that happened to me one time. I had made a nice bit of software ( my lawyers I can't be epxlicit about it) that you've probably heard about. Lo and behold, one day a friend asked me about the Xxxx package in a certain operating system out of Washington, and how much it looked like mine.
Well, I checked out the operating system, and it was nearly a clone. I called my lawyer, showed him the two apps side by side, and he agreed. We were on teh next plance to Seattle.
Amazingly enough, this corporate software giant agreed to meet with us. We were ushered into a quiet, comfortable conference room to meet with an IP lawyer.
Soon enough, the IP lawyer came in. Our jaws dropped to the floor, she could have been on Ally McBeal. She was a tall, long legged redhead with a skirt that couldn't be much shorter. She sat next to us, arranged her skirt to pointlessly try to cover herself, leaned forward, her ripe breasts straining to get out of her dress blouse, and quietly asked "How can I help you two?"
This reminds me. When I was very young, I rememer kids who would say what they wanted to be when they grew up. You'd get "fireman" "policeman" nurse, president, and occasionaly some kid would want to be a bird or some other non-human creature. I always thought that was kind of funny.
I guess the joke was on us all though. Because we all grew up to be something less than free. Votes that don't matter because "counting" errors and politicos who don't do what they promise, and the laws that impact our lives can be bought and sold like condoms out of a vending machine.
And of course, those very same laws are interpreted broadly, depending on who is to be judged by them.
Oh yeah I'm cynnical. I'm generation X. And this country is turning into a fucking shithole.
But upon reading the article, you notice that the guy never took the matter to court. This isn't an issue where the DMCA failed a small developer. Rather this is an issue where the US court system failed the individual. The DMCA certainly doesn't gaurantee financial resources to sue, nor does it gaurantee that someone will settle out of court when they are faced with it. In fact, the DMCA really doesn't merit mention in this article, because the injustice has nothing to do with the DMCA or even copyright law in general--it has to do with the fact that large corporations will always have the money to win lawsuits because the little guy can't cough up $20k to take the issue to court.
Ok, as has been said in the comments already, the problem was that this guy didn't have enough money to fight the big badguy.
A question that hasn't come up, however, is in regards to the DMCA provision for filing copyrights on your software.
Indeed, it looks as though this guy could have made quite a pretty penny on his software if he'd just filed for a copyright on it originally. But then, the real question is, how often do you have to do this? For example, going over to freshmeat will show you that a GREAT deal of very good software is in beta or lower stages. Do you have to get a copyright on this? What if you change the code by just a variable name? Small changes could end up costly due to the copyright filing charges.
This means that the copyright system in general is anti-free software. If you have to get a new copyright on every cvsupdate you make, there is no way any individual working out of his or her garage could manage this. Sure, you may file copyright on version 1.0, but when you release 1.2 (which adds few new features), suddenly that version is not copyrighted?
I'm asking if this is the case because I truly don't know, but from my limited understanding of copyright law, derivative works aren't included (at least, in filed copyrights).
This means that the GPL and Open Source models will always be behind closed source, proprietary software.
Sucks, doesn't it?
Could a solution be to copyright the major versions, and then to provide diffs to update them to minor versions? This way a company might steal the diffs, but without the original software+source code, they'd be largely worthless, and you'd still have a leg to stand on in court, not to mention the possibility of puntitive damages.
The problem is, that according to his site, version 1.0 is free, and version 2.0 is shareware.
This means that Ariston can FREELY redistribute it on their CDs, as long as the end users abide by the license terms.
License terms he gave on version 1.0:
"Matt's Hack TV, Version 1.0 Portions of application ©1998 Matt Warner Portions ©1992 by Apple
Computer, Inc. 'Email-me' ware: drop me a short note to let me know if you find this application useful. The application
is free and is not to be sold. There are no guarantees nor warranties regarding this software."
License terms he gave on version 2.0:
"Matt's Hack TV, Version 2.0, October 1998 Portions of application ©1998 Matt Warner Contact Info:
or Portions ©1992 by Apple Computer, Inc. $10 Shareware. There are no
guarantees nor warranties regarding this software.
What it does: Matt's Hack TV allows you to take advantage of your Power Macintosh AV input and output ports to convert,
in real time, NTSC to PAL, NTSC to SECAM, PAL to SECAM, or whatever combination. What you need is two video devices (two
VCRs, for example) which understand the appropriate video standard and your Macintosh will do the rest. I've only been
able to test the PAL NTSC aspect, but I don't expect there to be any problems with SECAM functionality.
One user has setup his Power Macintosh to his satellite system so that he can watch PAL broadcasts on his NTSC TV, in
real time!
I can't speak as to the quality of the Analog converters (DAC) used in the Power Macintosh, but I suspect that it does
not match the quality found in professional or dedicated systems. But hey, if you already own a Power Macintosh, it's
practically free (excepting the cost of the PAL VCR or camcorder).
Related Info: How do I setup my Power Macintosh for video standard conversions? The first step is to make sure that you
have RCA or S-VHS plugs connected to the ports at the back of your machine. Then, you must restart so that the Macintosh
goes into a dual-screen mode. You might notice that your main screen doesn't have as many colors available to it since
part of the video RAM is being used to drive the virtual monitor for the video-out port. If you either connect the input
video to the output port or have a VCR plugged in and turned on, you should be able to see what's displayed on the
virtual monitor (and goes to the video-out port). You should at least see your desktop pattern. Launch Matt's Hack TV
and set the input type to PAL, even though your virtual monitor is likely set to NTSC. Move all windows out of sight and
open the Monitors & Sound Control Panel. Move the main window out of the way (window-shade it even) and you'll be able
to see a second window that sets the characteristics of the virtual monitor, including bit depth and resolution. To
access the monitor, you'll have to move your mouse off your main screen and onto the virtual screen. For PAL output,
choose one of the PAL settings. For NTSC or SECAM, choose the appropriate setting.
Where to buy PAL equipment: I bought a PAL-system VCR through the mail from B&H Photo and Video in New York (I'm on the
west coast of the USA). Their web site is http://www.bhphoto.com. They also sell professional equipment and had
reasonable prices, so I felt pretty comfortable buying from them. And no, I am in no way affiliated with them (wouldn't
that be nice!).
Hey! My color picker stopped working! Actually, it's a problem with the color picker itself. The color picker
automatically chooses the deepest-pixel-depth monitor, which (if you have the problem) is the virtual monitor.
Unplugging the video-out jack and rebooting will restore expected behavior.
Background: I wrote this software to use in conjunction with a PAL-system VCR to which I transfer home video in
originally shot in NTSC. This way I can send video to friends overseas. I looked around for an application which
performed a similar task, but couldn't find one. So I wrote my own, based on sample code found at Apple's QuickTime
site, written by Gary Woodcock and called Hack TV.
With version 2.0 I added menubar hiding (thanks to sample code from David Hayward at Apple DTS), preferences file
support (thanks to Jim Luther, Apple DTS Emeritus), and clipping support.
Change History March 1999. Minor change to fix compatibility issues with third-party digitizing cards, such as the iREZ
Capsure for PowerBooks.
October 1998. Added Appearance Manager features (now required). Added a proper preferences file. Added clipping feature.
Changed background blackout functionality for better reliability. Added Òhide menubar option.Ó Squashed,
created, then squashed innumerable bugs. Now $10 shareware.
March 1998. Released as version 1.0.1. Changes to documentation.
March 1998. Released as version 1.0.0 First release.
Esoterica Anyone desiring to donate Mamiya medium-format camera equipment or SGI computer equipment/software to my
cause, be sure to contact me!
So, why the $10 charge? That's a tough question. The short answer is that we (my family and I) need the money and it
takes time to develop software.
The long answer: When I wrote the first version, I made it free, as my own meager contribution back into the world
society that is the Internet.
The Internet was founded on sharing information and ideas. In fact, arguably some of the best software out there is
free. Unix is a prime example of this. Perhaps, in my case, this is just an instance of not being very proficient at
programming, so it takes a lot of time away from other tasks. The bottom line is that while it genuinely pains me to
charge for software, the pain is inconsequential when compared to that felt when I see my monthly stack of bills. So
please understand. And please pay =:-)
"
Conclusion? He just fancied some cash and decided to try his luck. He lost. Awww... too bad.
Simon
Coming soon - pyrogyra
Great. Now the guy has had his software and his article redistributed without his permission.
Okay, he did not give any details on his license, but he calls it "email me ware." So if that companies customers actually use the software and fail to email him they would be in violation.
I though this sort of distribution was the whole point of shareware.
I am all for the little guy, but it seems like this guy wants to change the rules in the middle of the game to make a buck.
-Peter
"There is no number '1.'"
In a book I wrote years ago, I included code for, basically, extracting information about Windows VxDs from the binaries. I got this code from another developer who had placed copyright restrictions on the code. I included those restrictions along with the book and credited him for the code.
A few years later, Intel released a product for profiling software. In that software, they used the code from my book without my permission, nor the permission of the original author, who clearly stated that the code could not be used in for-profit software.
Being a small developer, and not having a registered copyright, there was nothing he could do. He certainly couldn't afford to take on the likes of Intel.
It's sad that companies with such large budgets and such talented programmers, have to resort to theft of code. And companies complain about piracy and intellectual property rights. They're a bunch of hypocrites and theives themselves.
There are also criminal penalties. From the DOJ cybercrime web site:
See 17 U.S.C. 506(a)(2); 18 U.S.C. 2319(a), (c)(1). The maximum punishment for this crime is 3 years imprisonment and $250,000. See infra Section III.D at page 71.
Another element, if proven, enhances the maximum penalty: That the defendant acted "for purposes of commercial advantage or private financial gain." If it is proven, the statutory maximum prison sentence can rise to 5 years. See 17 U.S.C. 506(a)(1); 18 U.S.C. 2319(a), (b)(1). See also infra Section III.B.5 at page 60 (discussing commercial purposes element). Moreover, a commercial motivation case will usually have better jury appeal than a case without commercial motivation. Indeed, if commercial motivation is not alleged, defendants may be more inclined to raise the affirmative defense of fair use, codified at 17 U.S.C. 107, since fair use defenses are more plausible when defendants do not profit financially by their acts of infringement. For a discussion of "fair use," see infra Section III.C.3 at page 71.
So talk to the local U.S. Attorney's Office.
If I publish a book that's a compilation of articles, it requires but one copyright registration. So where would we be if a service was set up where anything under appropriate license (say, GNU) could be uploaded to a site from which it would be (in compressed form) added to a DVD compilation-of-the-month (or so) that would be duly registered with the Feds under an "all rights revert to the authors of the individual packages" arrangement? After all, if I copyright a book or magazine - which will in some instances contain such an assignment to the original authors - and you steal a single article from it, you're guilty. And this means it wouldn't take 100s of folks submitting registration to the feds (and the fees that involves) but only one small organization with the ability to collect the stuff and burn the DVD (it would also I think be necessary to actually offer the DVD for sale in order to secure the copyright - so that it's actually published - but hey, that could be a useful thing to have or subscribe to for some).
"with their freedom lost all virtue lose" - Milton
(Note that the FSF is careful to copyright the code it releases under the GPL.)
What he really means is that the FSF is careful to register copyrighted code. Any copyrightable material is copyrighted by YOU as soon as YOU "fix" it on a "medium."
What registration gives you is extra protections, such as the ability to collect statuatory damages up to $100,000 if the infringement is judged to be willful. (If you don't register, you can only collect actual damages, which are very difficult to assess.) You can may also collect attorney's fees.
Hope this clears that up. We really need a copyright FAQ on Slashdot.
I got my Linux laptop at System76.