You haven't read. Easier to do than you might think, especially since most people think it rude to spend fifteen minutes staring hard at a document while someone waits for them.
Contains anything you don't understand. Question it all.
Isn't specific, time-limited and clear. Specific means that the information they want kept confidential is listed item-by-item, time-limited means months, not years, and clear means that they state precisely what they want you not to do with the information.
Which doesn't contain an "already known" clause. There should be a provision in there that allows you to document the stuff you heard that you already knew about. The last thing you want is to be keeping your own general knowledge confidential.
Which doesn't contain a "public domain" clause. This sort of clause excludes anything that has been published before you use the information. If they leave this one out, run.
The foregoing is paranoid advice. It needs to be. Confidentiality actions in this country, in the IT sector, are evil things. Not easy to prove a claimant's case, but the Defendant (you) is going to have a serious no-fun time learning all about that.
If in doubt, say you don't want to sign without talking to a lawyer and ask for the first interview to be conducted in general terms. Your argument is that they've got your CV so they know what you can do, and you don't need to get into the technical detail to figure out if your face fits (which, when all's said and done, is what interviews are about: can we work with each other without coming to pistols at dawn?)
You may have appreciated that this is a technical forum, but that most of its members add "IANAL" (for I Am Not A Lawyer) to comments on legal issues.
For all the not-a-lawyers here, perhaps you could explain what the procedural timetable for your appeal is, to which court, and what power that court has to overrule or set aside Kaplan's judgment? For instance, will the appeal be a full review of all the evidence and conclusions, or limited to review of his conclusions of law?
For the record, I am a lawyer, albeit a UK-qualified one, and I have trouble following US federal procedure without moving my lips. The confusion about procedural and forensic issues among the non-lawyers is painful to behold. A little route map of the way ahead for 2600 and DeCSS would go a long way to inform debate around here.
There's a limit to what I can say about this case: the firm I worked for at the time was acting for McDonalds.
It's not quite comparable with a "sucks" site, as the McLibel Two were distributing leaflets rather than publishing on the web.
Basically what happened was that these two soap-dodgers were defaming McDonalds on all fronts and were sued. Some of their comrades signed an admission, under threat, that they were liars (and then cheerfully stood up in the witness box under absolute privilege and retracted those statements, but that's by the by).
Two of them, though, insisted on their day in court. The trial broke current records for length and weight of evidence and MacDonalds lost on the issues of whether they were cruel to animals and whether they exploited children. They got home on most of the other allegations, and the damages (£100,000, about $155K) were, of course, ordered against defendants who had been bankrupt to start with and represented themselves.
Moral of the story: provided you have nothing to lose, you can turn corporate bully techniques against them. For a year or two, anyway - only lawyers remember it now.
If you haven't assigned or licensed copyright to contentville, or to someone to whom you also gave the right to assign on or sub-license, contentville is infringing your copyright.
If you're in that situation and minded to sue, you're entitled to damages, an account of their profits or (and this is the one that will probably make most sense) statutory damages, which could be up to $100,000. You're also entitled to be paid your attorney's fees of bringing the action.
Essentially, it's free money, provided you never signed over the copyright to your thesis. Talk to a local lawyer with a copyright practice if you want to get your hands on it.
I think it's probably worth mentioning for the benefit of the US voters that the Reagan-Bush dynasty makes the rest of the world more than a bit nervous. When palpable idiots get elected, it's because they're being "run" by more competent people behind the scenes. (The fact that Reagan was a millenialist with access to thermonuclear launch codes didn't help any).
A few people have mentioned that they think voting for a minority candidate is a "waste": not so. Visible support for a minority candidate causes the majority candidates to shift policy in the hope of preventing too great a vote loss. When the Front National (French Nazi party) started polling double-digit percentages of the popular vote, French politics lurched to the right for a while as the main parties tried to keep voters who might otherwise have drifted within the fold (sound familiar, M$ watchers?)
Thus a vote for [minority candidate of your choice] actually helps the agenda that that candidate is pushing, whether or not he or she stands a chance of getting fifty-percent-plus-one of the popular vote. It is in this way that our Liberal Democrat party, whose best electoral performance was at the '97 elections, when they came a close third, keep the two main parties more or less honest.
If the defendant offers no evidence or argument, whatever the claimant says (within reason) has to stand as the finding of the court. That pretty much automatically discharges any burden of proof you care to impose: if the other side declines to raise reasonable doubt, the Claimant sure as buggery isn't going to do it for him. A fortiori where the burden imposed is "balance of probabilities" - if the defendant puts nothing in his side, the tribunal is again stuck with only the claimant's side of the story to go on.
The important element is "not for profit" on the part of the infringer, I'd guess. As to whether third-party ads count, thinking aloud:
Third-party adds interpolated in your site to pay for your free space? I suppose one could say that the adverts are there because you're attracting visitors, which makes the ads valuable, for which you get something that is worth money, free web space.
At first glance, then, I'd say that those ads do count, since you're being paid for them in server space. The defendant's argument is that all the ads do is cover the cost of the webspace, and non-profit does not mean "loss-making". The notional payment for the ad space is the server space sufficient for the defendant to provide the wares on a cost-neutral basis - he therefore makes no profit.
It wouldn't help a claimant either if several users could be brought forward with tales of breach of contract in the shape of refused replacements of disks. But that's another issue, and one which has been well-rehearsed elsewhere under this article.
Pretty much wherever you go, ignorantia juris neminem excusat, I'm afraid. Everyone is presumed to know the law, except judges, who have the Court of Appeal to correct their mistakes. (This is a lawyer joke. And my colleagues wonder why they have no non-lawyer friends).
There isn't a work-round for Companies-House filings. It's first-come-first-served for limited companies' (equivalent to US Incs) names and there's jack you can do about someone getting in first.
Your only remedy is in trademark infringement if the company trades under a name you're using, or, if it's a squatter company, waiting until dormancy forces it off the register.
WIPO supplies arbitration services. ICANN undertakes to abide by the decisions of its accredited arbitrators. WIPO just happens to rule in favour of claimants a lot, and so gets a lot of that arbitration work because claimants naturally select the softest tribunal.
As it happens, whatever that arbitration tribunal decides, it ought in theory to be reviewable by a court of competent jurisdiction (there are some wrinkles to this one in the UK following the Arbitration Act 1996), a fortiori if the Defendant didn't submit to the jurisdiction of the arbitratori and absolutely if the defendant can demonstrate reasonable grounds for suspecting bias.
Your hypothetical/. members' arbitration panel, if it were to take a decision like the one you mention, would not only be making a decision that most courts would laugh themselves silly over, but would probably be exposing itself for liability on the grounds of bad faith.
Essentially, what I'm saying is that these arbitration mechanisms work a bit better than a cursory examination would suggest: there are checks and balances even if they aren't immediately obvious from news reports about the thing.
Most anti-cracking laws (no, I haven't done a formal comparative exercise, nor am I likely to) work on the basis that causing someone else's machine to execute any instruction without you being authorised to do it constitutes a crime.
Port scanning without asking is certainly rude, but there's no way of knowing that you're not allowed to do it - the mere fact that the system is connected to a public network is enough that you can assume it's OK to scan. Doing it after you've been asked not to is potentially a crime (check local law for details).
I guess the answer in most places, is that if you've got a legitimate reason to do it, ask first. If you have got a legitimate reason, it should be OK, no? If there's good reason for refusal and the admin you're asking gives it, everyone's happy. This is more of a good manners point than a legal one, though: local laws may or may not make unnanounced scanning Bad and Wrong, or require something over and above execution of code to make up the offence of Cracking.
When administering students' access, I guess the thing to do is make damned sure that port scanning leaves an audit trail, so that when you get Mr Angry on, you can pass on the complaint to the guilty party. Ignoring that kind of warning and scanning the same target again should certainly be contrary to a fair use policy: whether you want to go further and maintain a list of People Who Complain About Port Scans that users are required to consult before starting a scan depends on what the administrative overhead of maintaining the list will be against the overhead of dealing with repeat complaints.
The answer really depends on what you regard as good administrative practice in relation to an activity that annoys third parties. As to your potential liability, ask someone at the university's law faculty for a few pointers: I guarantee you won't hear a dull word in response (some or all of this sentence is intended to be construed as humour). There's certainly enough in what you say and in what people have been posting here to ring a few alarm bells in my mind about what you ought to be doing, if only at the good-neighbourliness level.
Thanks for that. One interesting point arising from it is that an alleged infringer can reduce the statutory damages to a more manageable $200 where it can prove it's a non-profit body indulging in fair use.
Whether an abandonware site with no ads restricting itself to truly obsolete unsupported software can avail itself of this is another question, of course, but it'd be worth a try if push came to shove and there was no convenient way of backing out before action.
They have a good argument: protecting their intellectual property enhances shareholder value in the only way that matters, the bottom line.
Now, if you can show that there's a grass-roots campaign to boycott Adobe products (and Acrobat is too widespread for that to be effective) and that it will be fuelled by this action, then you might have a point. There's long-term harm to profits being risked.
The trick with investor action is to get the institutional investors - pension funds and investment trusts and the like - on side. They are the ones holding blocks of six per cent and up, which in a publicly-traded company is big enough to attract proxies and swing a vote. They also act in concert (here in the UK, at any rate) to force good corporate practice on their investments by - basically - threatening the directors.
If you can show them that Adobe is likely to hurt its own bottom line in the long term by acting like this, then those institutional investors, singly or as a group, will have a word with the board and suggest that if they want their stock price to stay where it is, they ought to reconsider.
As I mentioned, I was talking about the UK position, where nominal damages is £5.00 and usually an order that the party winning them pay the other side's costs as a penalty for wasting the court's time and resources. I wasn't aware that US law (while I know a bit about US law, I'm first and foremost a UK lawyer) had such a swingeing view of what constituted "nominal" in a civil matter - the sums you're talking about sound like criminal fines. Is there some authority for that proposition that I can find on the web?
You'd have a job enforcing that provision under UK law, and if insisted on it'd likely amount to constructive and unfair dismissal.
It comes to this: in return for paying for your training, they're asking you to accept that you'll pay a penalty if you quit within twelve months.
Most places, you can't get specific performance of a contract of employment, not least because it violates anti-slavery laws. I think you could make a convincing argument that imposing this as a penalty is unenforceable for that reason: local law may differ (you don't say where you are, but I imagine you could get a local lawyer to pontificate for half an hour on the subject for very little money indeed).
Another possibility is that you could ask for a similar sort of penalty to be payable by the company during that period if they fire you for any reason. Insist that turnabout is fair play, and all.
Or, point out that they're trying to protect themselves against the flexibility of the labour market in your field. Point out further that their only remedy if you refuse to sign is either to fire you (which gets them to the same result) or to refuse you the training (in which case you polish up the interview skills for another job, again getting the same result.
Essentially, the only way they get to keep you is by keeping you happy, and proceed to specify how that happiness might be achieved (say a bonus of 2(x+1), where x is the sum you'd really accept - leaving room to be beaten down in negotiation, payable on the completion of n/2 months service, where n is the number of months you see yourself staying there, again with room to negotiate up to where you'd accept).
If they're dim enough to deny the essential logic of this situation (it's a seller's market for serious skills), ask yourself whether you really wanted to work for them anyway.
All of the foregoing is a lot more plausible if the entire workforce is indulging in variations on the same theme.
After all, you don't have to be in a union to organise...
Final caveat: any and all of the above, if acted on, could cost you money. Consult a lawyer qualified to practice your local law for specific advice on your specific circumstances. A hint on cost: if there are several of you in the same situation, go to the same lawyer and split the cost. Get a quote as to fees in advance, and go prepared with a list of specific questions you want answered. Take it from me, clients who do this get good service: everyone likes dealing with smart, thoughtful clients.
Criminally liable? Possibly. We have laws against cracking in this country, and any coding you do to that end could make you liable to a conspiracy or aiding and abetting charge. Possibly. I don't do any criminal law, and haven't in over ten years, so I can't be sure on this one.
Not entirely seriously, there are a number of offences you can commit by communicating with others in the UK:
Where you incite dissaffection between different classes of UK citizens, you commit sedition. So stirring up Mac users to assault slaves of the Borg would be covered by that (incidentally, this is what incitement to racial hatred used to get proscuted as before the tories made up a new offence and cut the penalty to two years' jail).
If your code mocks christ, it's blasphemous, and a criminal offence
If it depraves and corrupts the user, it's obscene and liable to seizure and destruction.
...er
... no doubt there're more, but these are all I can remember right now.
Civilly liable? I doubt it, frankly. The only successful case we've seen so involved some other thing being done by the guilty party: Napster offered the pirates' trading service. They aren't being made liable for their code.
DeCSS is an odd case. That DMCA business is a real kicker: it makes the tool, and distribution of the tool, illegal contrary to what I understand to be (and what the judge now appears to understand to be) the proper interpretation of the First Amendment. In theory at least, that should come out all right, but chickens should remain uncounted for a while yet.
The other oddity is Crypto. There are a lot of places around the world where you can get in serious, serious trouble for even thinking about the stuff.
Pah. I serve a higher cause than mere manners: pedantry is its own reward.
Besides, if I wasn't an ill-mannered, pettifogging, sanctimonious, loudmouthed, over-educated pedant, how would people know I was a lawyer? Seeing the suit, they might think I was an accountant or something low-class like that there./p.
You're suggesting the Franco-Prussian war ended in 1818, some sixty years and change before it began?
The 1914-18 war started as a result of tension in Europe arising from the militaristic policies of Bismarck, as continued by his protege and most avid student, Kaiser Wilhelm.
The gap was less than fifty years, and included a merry assortment of colonial skirmishes and six full-blown shooting wars in the Balkans arising from tension induced by Austria-Hungary's cold war with Germany & Prussia - Prussia had been contained after the bout with France and was looking hungry again. One of those wars ended up with the assassination of a certain Archduke Ferdinand, one thing led to another and the Germans invaded Belgium.
The analogy doesn't even remotely fit.
A better one would be with the 1939-45 war, in which competing ideologies duked it out for world control, and the one represented chiefly by the Nazis lost because they couldn't refrain from squabbling with their ideological allies (as in Operation Barbarossa, which drove the soviets away from their natural side in that fight) or select a leader who knew his strategic arse from his geopolitical elbow (as in Tojo, Mussolini and Hitler).
Current disputes about the future of intellectual property are a more genteel form of titanomachia, but sooner or later we're going to see where the balance of power as between guns and numbers lies on this one.
Thereafter there will be an uneasy period of peace before the world drops back to its ground state of slightly troubled anarchy that might not work well, but at least works.
I think you overestimate the ability of expensive lawyers. I am one, and know whereof I speak: the difficulty with running specious arguments like that in court is that the judge, who used to be an expensive lawyer himself, tends to ask inconvenient questions about how breach of copyright puts the Claimant out of pocket by the whole development cost in any way that hadn't happened by reason of the software's obsolescence.
Remember always that the aim of damages is to place the claimant in the position he would have been in, so far as money can do it, had the harmful act not occurred. Punitive damages can sometimes be levied over and above that measure for an assortment of reasons, but none of those reasons that I know of in various jurisdictions cover not-for-profit actions that cause zero or nominal loss to the aggrieved party.
In the UK a claim like that is susceptible to being thrown out at an early stage as having no reasonable prospect of success at trial under Part 24 of the Civil Procedure Rules, or as an abuse of process under Part 3. The winning party gets to claim the loser's costs from the winner as well.
Wholly orthogonal to the point you're making, of course, but the stability that arose following the Franco-Prussian War included a certain amount of shooting between 1914-18 and 1939-45, along with the 1936 sideshow in Spain, the 1917 revolution in Russia, and an assortment of "Incidents" below the "war" threshhold.
Easy enough. A public announcement that they intend never to pursue remedies in respect of the copyright, and that people are free to use the thing so released (maybe adding that henceforth it's on the GPL, if they're feeling that way out) amounts to a license granted to the world at large and off we go. While it isn't supported by consideration to make it completely enforceable, it's still thereafter impossible for anyone to sue on the copyright.
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.
Looking at the OpenLaw debate (which I can follow only about two-thirds of, being a UK lawyer and unfamiliar with the DMCA) I note that in only a couple of days m'learned colleagues have posted pages and pages of pettifogging pedantry and debate.
Ladies and gentlemen of the/. community, it is at times like these that I am truly proud of the legal community.
I actually think the 100k file limit is a good move. Yes, it's trivial to work around, but only for those with more nous than the average user of this sort of system.
Of the millions of Napsterites, I would guess that a very large percentage indeed wouldn't have the knowledge or - more importantly - the patience to take a really big file apart for posting or to bother to track down the whole thing and put it back together. Napster's great strength for copyright violation was that it was very, very easy to use indeed.
Adding a significant amount of ballsaching effort (whether assembling a dispersed file by hand or writing the script to do it) to the process of getting an MP3 or big piece of software is going to discourage the casual pirate, just as the trouble of getting through locked doors and windows and an alarm system will discourage the opportunist burglar.
In effect, it's likely to head Napster-style legal trouble off at the pass.
Slashdot Mirror
The answer from an actual UK-qualified lawyer:
Don't sign anything that:
The foregoing is paranoid advice. It needs to be. Confidentiality actions in this country, in the IT sector, are evil things. Not easy to prove a claimant's case, but the Defendant (you) is going to have a serious no-fun time learning all about that.
If in doubt, say you don't want to sign without talking to a lawyer and ask for the first interview to be conducted in general terms. Your argument is that they've got your CV so they know what you can do, and you don't need to get into the technical detail to figure out if your face fits (which, when all's said and done, is what interviews are about: can we work with each other without coming to pistols at dawn?)
You may have appreciated that this is a technical forum, but that most of its members add "IANAL" (for I Am Not A Lawyer) to comments on legal issues.
For all the not-a-lawyers here, perhaps you could explain what the procedural timetable for your appeal is, to which court, and what power that court has to overrule or set aside Kaplan's judgment? For instance, will the appeal be a full review of all the evidence and conclusions, or limited to review of his conclusions of law?
For the record, I am a lawyer, albeit a UK-qualified one, and I have trouble following US federal procedure without moving my lips. The confusion about procedural and forensic issues among the non-lawyers is painful to behold. A little route map of the way ahead for 2600 and DeCSS would go a long way to inform debate around here.
McLibel
There's a limit to what I can say about this case: the firm I worked for at the time was acting for McDonalds.
It's not quite comparable with a "sucks" site, as the McLibel Two were distributing leaflets rather than publishing on the web.
Basically what happened was that these two soap-dodgers were defaming McDonalds on all fronts and were sued. Some of their comrades signed an admission, under threat, that they were liars (and then cheerfully stood up in the witness box under absolute privilege and retracted those statements, but that's by the by).
Two of them, though, insisted on their day in court. The trial broke current records for length and weight of evidence and MacDonalds lost on the issues of whether they were cruel to animals and whether they exploited children. They got home on most of the other allegations, and the damages (£100,000, about $155K) were, of course, ordered against defendants who had been bankrupt to start with and represented themselves.
Moral of the story: provided you have nothing to lose, you can turn corporate bully techniques against them. For a year or two, anyway - only lawyers remember it now.
If you haven't assigned or licensed copyright to contentville, or to someone to whom you also gave the right to assign on or sub-license, contentville is infringing your copyright.
If you're in that situation and minded to sue, you're entitled to damages, an account of their profits or (and this is the one that will probably make most sense) statutory damages, which could be up to $100,000. You're also entitled to be paid your attorney's fees of bringing the action.
Essentially, it's free money, provided you never signed over the copyright to your thesis. Talk to a local lawyer with a copyright practice if you want to get your hands on it.
I think it's probably worth mentioning for the benefit of the US voters that the Reagan-Bush dynasty makes the rest of the world more than a bit nervous. When palpable idiots get elected, it's because they're being "run" by more competent people behind the scenes. (The fact that Reagan was a millenialist with access to thermonuclear launch codes didn't help any).
A few people have mentioned that they think voting for a minority candidate is a "waste": not so. Visible support for a minority candidate causes the majority candidates to shift policy in the hope of preventing too great a vote loss. When the Front National (French Nazi party) started polling double-digit percentages of the popular vote, French politics lurched to the right for a while as the main parties tried to keep voters who might otherwise have drifted within the fold (sound familiar, M$ watchers?)
Thus a vote for [minority candidate of your choice] actually helps the agenda that that candidate is pushing, whether or not he or she stands a chance of getting fifty-percent-plus-one of the popular vote. It is in this way that our Liberal Democrat party, whose best electoral performance was at the '97 elections, when they came a close third, keep the two main parties more or less honest.
If the defendant offers no evidence or argument, whatever the claimant says (within reason) has to stand as the finding of the court. That pretty much automatically discharges any burden of proof you care to impose: if the other side declines to raise reasonable doubt, the Claimant sure as buggery isn't going to do it for him. A fortiori where the burden imposed is "balance of probabilities" - if the defendant puts nothing in his side, the tribunal is again stuck with only the claimant's side of the story to go on.
The important element is "not for profit" on the part of the infringer, I'd guess. As to whether third-party ads count, thinking aloud:
Third-party adds interpolated in your site to pay for your free space? I suppose one could say that the adverts are there because you're attracting visitors, which makes the ads valuable, for which you get something that is worth money, free web space.
At first glance, then, I'd say that those ads do count, since you're being paid for them in server space. The defendant's argument is that all the ads do is cover the cost of the webspace, and non-profit does not mean "loss-making". The notional payment for the ad space is the server space sufficient for the defendant to provide the wares on a cost-neutral basis - he therefore makes no profit.
It wouldn't help a claimant either if several users could be brought forward with tales of breach of contract in the shape of refused replacements of disks. But that's another issue, and one which has been well-rehearsed elsewhere under this article.
Pretty much wherever you go, ignorantia juris neminem excusat, I'm afraid. Everyone is presumed to know the law, except judges, who have the Court of Appeal to correct their mistakes. (This is a lawyer joke. And my colleagues wonder why they have no non-lawyer friends).
There isn't a work-round for Companies-House filings. It's first-come-first-served for limited companies' (equivalent to US Incs) names and there's jack you can do about someone getting in first.
Your only remedy is in trademark infringement if the company trades under a name you're using, or, if it's a squatter company, waiting until dormancy forces it off the register.
WIPO supplies arbitration services. ICANN undertakes to abide by the decisions of its accredited arbitrators. WIPO just happens to rule in favour of claimants a lot, and so gets a lot of that arbitration work because claimants naturally select the softest tribunal.
As it happens, whatever that arbitration tribunal decides, it ought in theory to be reviewable by a court of competent jurisdiction (there are some wrinkles to this one in the UK following the Arbitration Act 1996), a fortiori if the Defendant didn't submit to the jurisdiction of the arbitratori and absolutely if the defendant can demonstrate reasonable grounds for suspecting bias.
Your hypothetical /. members' arbitration panel, if it were to take a decision like the one you mention, would not only be making a decision that most courts would laugh themselves silly over, but would probably be exposing itself for liability on the grounds of bad faith.
Essentially, what I'm saying is that these arbitration mechanisms work a bit better than a cursory examination would suggest: there are checks and balances even if they aren't immediately obvious from news reports about the thing.
Most anti-cracking laws (no, I haven't done a formal comparative exercise, nor am I likely to) work on the basis that causing someone else's machine to execute any instruction without you being authorised to do it constitutes a crime.
Port scanning without asking is certainly rude, but there's no way of knowing that you're not allowed to do it - the mere fact that the system is connected to a public network is enough that you can assume it's OK to scan. Doing it after you've been asked not to is potentially a crime (check local law for details).
I guess the answer in most places, is that if you've got a legitimate reason to do it, ask first. If you have got a legitimate reason, it should be OK, no? If there's good reason for refusal and the admin you're asking gives it, everyone's happy. This is more of a good manners point than a legal one, though: local laws may or may not make unnanounced scanning Bad and Wrong, or require something over and above execution of code to make up the offence of Cracking.
When administering students' access, I guess the thing to do is make damned sure that port scanning leaves an audit trail, so that when you get Mr Angry on, you can pass on the complaint to the guilty party. Ignoring that kind of warning and scanning the same target again should certainly be contrary to a fair use policy: whether you want to go further and maintain a list of People Who Complain About Port Scans that users are required to consult before starting a scan depends on what the administrative overhead of maintaining the list will be against the overhead of dealing with repeat complaints.
The answer really depends on what you regard as good administrative practice in relation to an activity that annoys third parties. As to your potential liability, ask someone at the university's law faculty for a few pointers: I guarantee you won't hear a dull word in response (some or all of this sentence is intended to be construed as humour). There's certainly enough in what you say and in what people have been posting here to ring a few alarm bells in my mind about what you ought to be doing, if only at the good-neighbourliness level.
Thanks for that. One interesting point arising from it is that an alleged infringer can reduce the statutory damages to a more manageable $200 where it can prove it's a non-profit body indulging in fair use.
Whether an abandonware site with no ads restricting itself to truly obsolete unsupported software can avail itself of this is another question, of course, but it'd be worth a try if push came to shove and there was no convenient way of backing out before action.
They have a good argument: protecting their intellectual property enhances shareholder value in the only way that matters, the bottom line.
Now, if you can show that there's a grass-roots campaign to boycott Adobe products (and Acrobat is too widespread for that to be effective) and that it will be fuelled by this action, then you might have a point. There's long-term harm to profits being risked.
The trick with investor action is to get the institutional investors - pension funds and investment trusts and the like - on side. They are the ones holding blocks of six per cent and up, which in a publicly-traded company is big enough to attract proxies and swing a vote. They also act in concert (here in the UK, at any rate) to force good corporate practice on their investments by - basically - threatening the directors.
If you can show them that Adobe is likely to hurt its own bottom line in the long term by acting like this, then those institutional investors, singly or as a group, will have a word with the board and suggest that if they want their stock price to stay where it is, they ought to reconsider.
Frankly, though, I don't hold out much hope.
As I mentioned, I was talking about the UK position, where nominal damages is £5.00 and usually an order that the party winning them pay the other side's costs as a penalty for wasting the court's time and resources. I wasn't aware that US law (while I know a bit about US law, I'm first and foremost a UK lawyer) had such a swingeing view of what constituted "nominal" in a civil matter - the sums you're talking about sound like criminal fines. Is there some authority for that proposition that I can find on the web?
You'd have a job enforcing that provision under UK law, and if insisted on it'd likely amount to constructive and unfair dismissal.
It comes to this: in return for paying for your training, they're asking you to accept that you'll pay a penalty if you quit within twelve months.
Most places, you can't get specific performance of a contract of employment, not least because it violates anti-slavery laws. I think you could make a convincing argument that imposing this as a penalty is unenforceable for that reason: local law may differ (you don't say where you are, but I imagine you could get a local lawyer to pontificate for half an hour on the subject for very little money indeed).
Another possibility is that you could ask for a similar sort of penalty to be payable by the company during that period if they fire you for any reason. Insist that turnabout is fair play, and all.
Or, point out that they're trying to protect themselves against the flexibility of the labour market in your field. Point out further that their only remedy if you refuse to sign is either to fire you (which gets them to the same result) or to refuse you the training (in which case you polish up the interview skills for another job, again getting the same result.
Essentially, the only way they get to keep you is by keeping you happy, and proceed to specify how that happiness might be achieved (say a bonus of 2(x+1), where x is the sum you'd really accept - leaving room to be beaten down in negotiation, payable on the completion of n/2 months service, where n is the number of months you see yourself staying there, again with room to negotiate up to where you'd accept).
If they're dim enough to deny the essential logic of this situation (it's a seller's market for serious skills), ask yourself whether you really wanted to work for them anyway.
All of the foregoing is a lot more plausible if the entire workforce is indulging in variations on the same theme.
After all, you don't have to be in a union to organise...
Final caveat: any and all of the above, if acted on, could cost you money. Consult a lawyer qualified to practice your local law for specific advice on your specific circumstances. A hint on cost: if there are several of you in the same situation, go to the same lawyer and split the cost. Get a quote as to fees in advance, and go prepared with a list of specific questions you want answered. Take it from me, clients who do this get good service: everyone likes dealing with smart, thoughtful clients.
Depends what you mean by "liable".
Criminally liable? Possibly. We have laws against cracking in this country, and any coding you do to that end could make you liable to a conspiracy or aiding and abetting charge. Possibly. I don't do any criminal law, and haven't in over ten years, so I can't be sure on this one.
Not entirely seriously, there are a number of offences you can commit by communicating with others in the UK:
Civilly liable? I doubt it, frankly. The only successful case we've seen so involved some other thing being done by the guilty party: Napster offered the pirates' trading service. They aren't being made liable for their code.
DeCSS is an odd case. That DMCA business is a real kicker: it makes the tool, and distribution of the tool, illegal contrary to what I understand to be (and what the judge now appears to understand to be) the proper interpretation of the First Amendment. In theory at least, that should come out all right, but chickens should remain uncounted for a while yet.
The other oddity is Crypto. There are a lot of places around the world where you can get in serious, serious trouble for even thinking about the stuff.
Pah. I serve a higher cause than mere manners: pedantry is its own reward.
Besides, if I wasn't an ill-mannered, pettifogging, sanctimonious, loudmouthed, over-educated pedant, how would people know I was a lawyer? Seeing the suit, they might think I was an accountant or something low-class like that there./p.
You're suggesting the Franco-Prussian war ended in 1818, some sixty years and change before it began?
The 1914-18 war started as a result of tension in Europe arising from the militaristic policies of Bismarck, as continued by his protege and most avid student, Kaiser Wilhelm.
The gap was less than fifty years, and included a merry assortment of colonial skirmishes and six full-blown shooting wars in the Balkans arising from tension induced by Austria-Hungary's cold war with Germany & Prussia - Prussia had been contained after the bout with France and was looking hungry again. One of those wars ended up with the assassination of a certain Archduke Ferdinand, one thing led to another and the Germans invaded Belgium.
The analogy doesn't even remotely fit.
A better one would be with the 1939-45 war, in which competing ideologies duked it out for world control, and the one represented chiefly by the Nazis lost because they couldn't refrain from squabbling with their ideological allies (as in Operation Barbarossa, which drove the soviets away from their natural side in that fight) or select a leader who knew his strategic arse from his geopolitical elbow (as in Tojo, Mussolini and Hitler).
Current disputes about the future of intellectual property are a more genteel form of titanomachia, but sooner or later we're going to see where the balance of power as between guns and numbers lies on this one.
Thereafter there will be an uneasy period of peace before the world drops back to its ground state of slightly troubled anarchy that might not work well, but at least works.
I think you overestimate the ability of expensive lawyers. I am one, and know whereof I speak: the difficulty with running specious arguments like that in court is that the judge, who used to be an expensive lawyer himself, tends to ask inconvenient questions about how breach of copyright puts the Claimant out of pocket by the whole development cost in any way that hadn't happened by reason of the software's obsolescence.
Remember always that the aim of damages is to place the claimant in the position he would have been in, so far as money can do it, had the harmful act not occurred. Punitive damages can sometimes be levied over and above that measure for an assortment of reasons, but none of those reasons that I know of in various jurisdictions cover not-for-profit actions that cause zero or nominal loss to the aggrieved party.
This is why I limited the initial post to the UK.
In the UK a claim like that is susceptible to being thrown out at an early stage as having no reasonable prospect of success at trial under Part 24 of the Civil Procedure Rules, or as an abuse of process under Part 3. The winning party gets to claim the loser's costs from the winner as well.
Wholly orthogonal to the point you're making, of course, but the stability that arose following the Franco-Prussian War included a certain amount of shooting between 1914-18 and 1939-45, along with the 1936 sideshow in Spain, the 1917 revolution in Russia, and an assortment of "Incidents" below the "war" threshhold.
Choose your analogies with more care in future.
Easy enough. A public announcement that they intend never to pursue remedies in respect of the copyright, and that people are free to use the thing so released (maybe adding that henceforth it's on the GPL, if they're feeling that way out) amounts to a license granted to the world at large and off we go. While it isn't supported by consideration to make it completely enforceable, it's still thereafter impossible for anyone to sue on the copyright.
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.
Looking at the OpenLaw debate (which I can follow only about two-thirds of, being a UK lawyer and unfamiliar with the DMCA) I note that in only a couple of days m'learned colleagues have posted pages and pages of pettifogging pedantry and debate.
Ladies and gentlemen of the /. community, it is at times like these that I am truly proud of the legal community.
I actually think the 100k file limit is a good move. Yes, it's trivial to work around, but only for those with more nous than the average user of this sort of system.
Of the millions of Napsterites, I would guess that a very large percentage indeed wouldn't have the knowledge or - more importantly - the patience to take a really big file apart for posting or to bother to track down the whole thing and put it back together. Napster's great strength for copyright violation was that it was very, very easy to use indeed.
Adding a significant amount of ballsaching effort (whether assembling a dispersed file by hand or writing the script to do it) to the process of getting an MP3 or big piece of software is going to discourage the casual pirate, just as the trouble of getting through locked doors and windows and an alarm system will discourage the opportunist burglar.
In effect, it's likely to head Napster-style legal trouble off at the pass.