Internet Downloads

[Jarulf]

Own is a bad word.  I really meant something along the lines of possess, because the material is never really owned by anyone except the copyright holder.

I'm not sure of the charge that can be put against you, but in America, possessing unreleased material is illegal.  I think it's similar to getting a moving violation ticket if you parallel park on the left side of a two way street here.  You may not be parking illegally, but you had to cross to the the wrong side of the road to park that way.

Since the material has not been released at all in any legal capacity, possessing it means you had to come across it through illegal means.
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Even possession is not an exclusive right of the copyright holder. It is not an infringement to possess a copy, it is the act of copying that is infringement. That holds true for all copyright laws I have studied or read about.

I should say that I have not as good grasp of every little twist of the US copyright law as, about the swedish one, for example, and in regard to unpublished material, there might exist something I am not aware of, perhaps you can in that case direct me to that part of the copyright law. However, for a film at the movies (but not on DVD) it has been released though.

As for US parking law and how you can get a fine, I really can't comment. Had it been in Sweden, you could not have been given a fine for parking "becaues you must have broken some traffic regulation to get there". Parking fines is strictyl about parking (and here, often handled by others that the police). Anything else is a strict police bussiness, but then you would get booked for the violation you made, not for a non existing wrong parking.

Regarding your final statement, in that case, the way you got in possession of it is the illegal activity and what you can be draged to court for, but it would, unless you made the copy in which case that would be the infringement, be covered by other laws (like breaking in and steal it). The possession in it self would not be, as far as I know, be infringement.

[Darian]

So, instead ot telling me that I should not quote all of itt after having told me to not quote a too small part just to end up meaning I don't understood what you wrote, why not instead telling me what you actually meant though and what I missunderstood?[right][snapback]78975[/snapback][/right]

I DID. Here, since you're apparently blind, I'll do it AGAIN.

"Actually, it clearly mentions 'just bought a license,' with the main key word being 'just.' It's very helpful to take an entire sentence within its own context rather than nitpicking a word which is sort of semantically null. When you purchase a software license, just what is it you think you're licensing it for? To NOT use?"

By the way, although the term is not commonly used for any standard consumer purchases of any copyrighted material other than software, it is universally used in the United States when referring to commercial purchases of copyrighted material. When a movie theater purchases a film, they are not purchasing the film to use as they see fit; they are purchasing a license to use the film under certain specific restrictions (including number of screens, times per day, even price of tickets... all sorts of esoteric crap). Similarly, when you purchase a movie on DVD, you are purchasing a license to use it -- it's just that rather than having all sorts of minutae involved, the restrictions placed on you extend no further than anything which would infringe on the rights granted to the copyright holder within section 106 of US copyright law. With software, the consumer line falls in the middle; some software licenses merely reiterate section 106 using a lot more words than are necessary, but some place additional restrictions (some of them legally required, even; because of the software installed on it, I cannot take my laptop to certain countries without violating US law, for example).

But the bottom line... I'll get to this in a minute.

In your post I replied to, you said that copyright had an interesting twist and mentioned two ways to look at it. I wanted to comment on the part you called "Microsoft's view" stating that it is not a particular bad or correct view since the "use" part of their view has nothing to do with copyright.

Which would be swell, had you actually said what you're claiming to say, or if I had been referring to "use" as opposed to the fact that "use" is ALL you are allowed to do with the damned software, a point which you've missed a half-dozen times now.

Any such thing is related to sales and transfer of ownership though.

...which of course means nothing, since the one thing that's absolutely clear is that when you purchase media containing copyright material, the one thing that's absolutely true is that no transfer of ownership in anything but the media materials has taken place. You don't buy software, you buy the right to use it within specific guidelines.

To this you reply that your comment didn't even address the right to use, so I quoted again a smaller part just showing that. Now, tell me what I have missunderstood!

I have been.

I assume we talk about the copyright law, since all other discussions has been about it. My question from previous posting stands though, show WERE in copyright laws use is forbidden and given as an exclusive right to the copyright holder. It would be interesting if you found such a new hidden exclusive right of the copyright holder.
I have seen many erroneous statements about copyright, but this one takes the price. Have you ever read any copyright law? Or just a few text or information regarding copyright law at all? It is pointless discussing something with someone that doesn't even know the basics. I have allready posted a link to the US copyright law since I believe you might live there. Let me quote the part of the law though that tells what rights are given as exclusive to the copyright holders. It is found in chapter 1, §106:

Code:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

That is it. Anything not listed above is not an exclusive right of the copyright holder and can be done by ANYONE!

And here's where you completely lose it. Exclusive rights to the copyright holder do NOT mean that anyone anywhere can do whatever they want if it's not listed there. It means that the ONLY party who has the RIGHT to do THOSE things is the copyright holder -- and by definition, contained within clause (3), includes the copyright holder's INALIENABLE LEGAL RIGHT to tell you what you may or may not do with their work.

I said I'd get back to the bottom line in a minute, and here we are. See, the problem here is that you seem to be under the impression that you have a right to purchase their work. You don't. First, you can't purchase their work in the sense that you're thinking of, because regardless of how many copies of Windows XP you buy, Microsoft still owns it. That aside, Microsoft most certainly has the absolute and inalienable right to tell you, "Yes, we will sell you the right to use our software, so long as you abide by the conditions we set."

I don't understand why you don't get this. When you buy software, the only thing you can possibly be purchasing is the right to use it. What the hell ELSE do you think you're buying when you buy Windows? Coasters? Frisbees? Shiny discs with which to make art projects? You're certainly not buying the software itself, and I know you understand THAT much, so what else could you possibly be paying money for?

And once you answer that question for yourself, you'll see just how silly it is for you to try and argue that a software company "can't" sell you a "license to use" their product.

You have missunderstood how the copyright law is structured and worded. As I mentioned above, it works the other way arround from what you think. The paragraph i quoted above is the one that give rights to the copyright holder. All other things you do is free to do by anyone.

No. It is not. Under clause (3) of section 106, the copyright holder is given absolute and complete control of the means of distribution of their work, which means they have the absolute and complete right to tell you how you may and may not use it as part of the terms of sale.

The fair use is a limitation on the exclusive rights of the copyright holder. It covers cases when you do one of the actions exclusive to the copyright holder and which would otherwsie have been infringement. For you to apply the "fair use" there first have to be an infringing action and the fair use is a defense to that infringement turning it into a non infringement. For anything you do that is not an infringement, there is no point at all to go to fair use.

What's your point? I only brought up fair use to point out that it's the only place in US Copyright law where "use" is defined or addressed, in contradiction to your insinuation that you have some right to use copyrighted works in any way you see fit. The lack of prohibition in this case is NOT a granting of rights. The copyright holder has the absolute and complete right to determine what may be done with his/her/its work. In most cases, they don't bother to outline what they consider to be acceptable use; if you buy a CD, it's pretty well assumed that you're going to, you know, listen to the damned thing. Anything they don't want you to do with their music is clearly already forbidden by copyright law itself. But your entire argument has been based on the fallacious argument that software companies do not have the right to dictate the terms under which you may use their product, and you're absolutely dead wrong. And since they can dictate those terms, it is perfectly legitimate to say you have a "license to use."

Agreed, and the reason is that without the law, any action would be OK by anyone. So the copyright law works the other way arround, gives some rights exclusively to the copyright holder (and thus anything else is OK to everyone else). There is no need to list the basically endless number of things a consumer can do since he can do anything not specifically given as exclusive to the copyright holder.

Unless the work is sold to the consumer under terms and conditions, which is the entire thing we're talking about.

How you distribute things have nothing to do with copyright (it doens't cover it either in case you want to search), it is typically coverd by for example (consumer) sale laws or contract laws.

Yes, and that's exactly my point. The terms under which a copyright holder distributes his work supercede the implied rights granted to the consumer. Your right to use a copyrighted work after purchasing a copy of it can be limited by the terms of sale. The fact that this isn't in the copyright law is completely irrelevant. Are you actually trying to argue that because one thing is in one law and another thing is in another law that the two things have nothing to do with one another? The right to force you to accept terms of use as part of a sale of copyrighted material is an example of combining two different laws in a completely legal fashion, in order to achieve a desired result. Microsoft owns Windows XP. Microsoft is under no legal obligation to grant you an unlimited use of their product, period. Therefore, Microsoft sells you Windows, and grants you a license to use it under very specific terms and conditions. You may choose to purchase that license and then use it as stipulated, or you can choose not to use it at all.

I have allready commented this and how it is wrong above, several times actually, just not cutting it away to avoid confuctio and being accused of cutting things out or missquote.

Except it's not wrong, because you stubbornly refuse to accept that a copyright holder can impose terms on what you may or may not do with their work as part of the terms of sale.

[Darian]

Even possession is not an exclusive right of the copyright holder. It is not an infringement to possess a copy, it is the act of copying that is infringement. That holds true for all copyright laws I have studied or read about.
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This statement is factually correct in every respect... EDIT: never mind the rest, I failed to notice that Jarulf said the same thing in the last paragraph of his comment. :wacko:

[Raelynn]

I think we're hitting a problem in the discussion because you seem to be quoting the normal copyright laws, where as some of this topic should be looking at the DMCA copyright laws (in the US at least) since that was specifically written concerning digital media. I don't know the specifics of the DMCA, but it migt be worth considering.

[Darian]

I think we're hitting a problem in the discussion because you seem to be quoting the normal copyright laws, where as some of this topic should be looking at the DMCA copyright laws (in the US at least) since that was specifically written concerning digital media.  I don't know the specifics of the DMCA, but it migt be worth considering.
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Not really. The DMCA doesn't alter existing copyright law in any way; it basically covers a couple of main points: the use, sale, and manufacture of encryption cracking software, and the liability of internet service providers when their users utilize the service to infringe on copyright. There's nothing in the DMCA which makes it any more or less illegal to possess infringing material.

[Raelynn]

Not really.  The DMCA doesn't alter existing copyright law in any way; it basically covers a couple of main points: the use, sale, and manufacture of encryption cracking software, and the liability of internet service providers when their users utilize the service to infringe on copyright.  There's nothing in the DMCA which makes it any more or less illegal to possess infringing material.
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I only meant that it might be worth looking into the wording since there may be some specific content concerning liscensing or something similar. Everything that's quoted seemed to be from the normal copyright laws, which were written beforethe digital age.

I haven't read them so I don't know the content much, but I would think that there might be some useful information there.

[Jarulf]

I only meant that it might be worth looking into the wording since there may be some specific content concerning liscensing or something similar.  Everything that's quoted seemed to be from the normal copyright laws, which were written beforethe digital age.

I haven't read them so I don't know the content much, but I would think that there might be some useful information there.
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In this I would agree with Darian, it has mostly to do with a bit different thing. What I think the DMCA did do though is that it in effect gave the copyright holder a new "right" sort of, that of access. This is done not by giving them that right, but by making it possible to control it as long as they put some sort of technical protection mechanism on the work. However, since they want people to access the work they sell (or it would be pointless), they also have to provide the mechanisms to access it. What the DMCA do is that it in part outlaws OTHER methods to access the content. This does not mean one need any special permision to access a work thus protected, it only means that you can't pick your own method, like writing your own program to extract DVD movies on, for example, a computer running Linux. For this discussion here in this thread though, I would say the DMCA is quite irellevant.

[Fragbait]

Hi,
Admittedly I'm not American, nor do I know something about the American Copyright Law, but you seem to be interested in the laws of other countries as well.
here are some excerpts of the German Copyright Law, especially concerning the 'use' of copyrighted material:


"(1) Der Urheber kann einem anderen das Recht einräumen, das Werk auf einzelne oder alle Nutzungsarten zu nutzen (Nutzungsrecht). Das Nutzungsrecht kann als einfaches oder ausschließliches Recht sowie räumlich, zeitlich oder inhaltlich beschränkt eingeräumt werden. [...]"


quick translation:

"(1) The copyright owner can permit others to use the opus in some, or all ways (right of use). The right of use can be permitted as simple or exclusive right, as well as spacially or temporally restricted or as regards content restricted.[...]"


That means, that there actually is (in Germany at least) such a 'right of use'.


concerning computer programs:

"Der Rechtsinhaber hat das ausschließliche Recht, folgende Handlungen vorzunehmen oder zu gestatten: [...]
3. jede Form der Verbreitung des Originals eines Computerprogramms oder von Vervielfältigungsstücken, einschließlich der Vermietung. Wird ein Vervielfältigungsstück eines Computerprogramms mit Zustimmung des Rechtsinhabers im Gebiet der Europäischen Union [...] im Wege der Veräußerung in Verkehr gebracht, so erschöpft sich das Verbreitungsrecht in bezug auf dieses Vervielfältigungsstück mit Ausnahme des Vermietrechts;"


quick translation:

"The copyright owner has the exclusive right, to conduct or license the following actions: [...]
3. every form of distribution of the archetype of the computer program or of copies, including rental. Is a copy ditributed by sale within the judicial domain of the European Union [...] with the allowance of the copyright owner, the right to distribute concerning this copy wears out, with the exception of the right of rental."


That means that (in Germany at least), companys can sell licenses under the conditions they wish.


Greetings, Fragbait

[Jarulf]

There seems to be some limitations on the number of quotes one can make in a post and if one exceeds that, it doesn't quote at all. SInce I have allready written it all, I will instead break up the post in more than 1 and will keep it in mind for future postings to quote in less blocks. Sorry for any inconvenience..

I DID.  Here, since you're apparently blind, I'll do it AGAIN.

"Actually, it clearly mentions 'just bought a license,' with the main key word being 'just.' It's very helpful to take an entire sentence within its own context rather than nitpicking a word which is sort of semantically null. When you purchase a software license, just what is it you think you're licensing it for? To NOT use?"

What I am trying to say is that there is NO need for a license to use a computer program (or a book, or a music CD or anything else copyright related you can think of). Buying a license to use a computer program is as pointless as buying a license to breath, you are perfectly allowed to do it without the license. The fact that someone tries to sell it to you or claim they have such a license for you, does not automatically turn it not allowed if you don't have it.

You need a license to do something that would otherwise not be allowed. For example, if you want to take a book and make copies and sell to people, you would not be allowed since the copyright law says you are not allowed to do that if you are not the copyright holder. So you need to get a license/permission/contract with the copyright holder to be able to do that. If you want to use the same book (like reading it) or a computer program, you don't need to get such a license/permission/contract since the copyright law does not forbid it, even if you do not hold the copyright.

If you feel the copyright law forbid such use, please feel free to tell WERE.

By the way, although the term is not commonly used for any standard consumer purchases of any copyrighted material other than software, it is universally used in the United States when referring to commercial purchases of copyrighted material.  When a movie theatre purchases a film, they are not purchasing the film to use as they see fit; they are purchasing a license to use the film under certain specific restrictions (including number of screens, times per day, even price of tickets... all sorts of esoteric crap).

No, a purchase is a purchase and in this case there is a purchase of a copy of the film. Of course, one can instead set it up as loan or make it part of some contract otherwise tied to the purchase, but that has NOTHING to do with copyright at all. It is contract/sales law. You can do the same with a table you sell to people.

  Similarly, when you purchase a movie on DVD, you are purchasing a license to use it -- it's just that rather than having all sorts of minutae involved, the restrictions placed on you extend no further than anything which would infringe on the rights granted to the copyright holder within section 106 of US copyright law.

You are listening to much to media propaganda. There is no sell of "licenses" it is a purchase, just like anything else. It is a deal between you and the shop and covered by normal sales laws. As I stated above, there is not even a need for a license so selling one would be utter pointless. Again, normal use does not in any way infringe on any of the rights given to the copyright holder under § 106, so just would you need your "license" for? What in § 106 would you infringe on without your claimed license to use it?

[snip]

But the bottom line... I'll get to this in a minute.

I am tempted to skip ahead just to read it first :)

...which of course means nothing, since the one thing that's absolutely clear is that when you purchase media containing copyright material, the one thing that's absolutely true is that no transfer of ownership in anything but the media materials has taken place.  You don't buy software, you buy the right to use it within specific guidelines.

What makes you think that? Of course there is a change in ownership, there is a change of ownership of a copy of the work (which by the way, in §101 of US copyright law is defined as:

Code:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

By the way, for phone records it says pretty much the same thing, it is just split up some. You can't separate the two things as you do. In addition, don't confuse ownership of the work (the copyright) and ownership of individual copies. It is non related and copyright does not give you ownership of a copy just because you have the copyright to it. In a sale, there is a change of ownership of a copy, but not of the copyright. Nothing strange at all. So yes, you buy copies of software too. No idea were you got the idea that you did no (or could not).

And here's where you completely lose it.  Exclusive rights to the copyright holder do NOT mean that anyone anywhere can do whatever they want if it's not listed there.

Of course it is, gee. What else would there be to tell that you are not allowed to do something? Nothing. The reason they give something exclusive to the copyright holder is because if they did not, everyone would be able to do it. Only those things given as exclusive ones are those you can't do without a permission.

It means that the ONLY party who has the RIGHT to do THOSE things is the copyright holder -- and by definition, contained within clause (3), includes the copyright holder's INALIENABLE LEGAL RIGHT to tell you what you may or may not do with their work.

I admit my English is not perfect or even very good, since it is not my native language, but please tell me were or how clause (3) can be interpreted to say that it includes "to use" or "what to do"!! It only tells that the copyright owner is the only one allowed to sell (or otherwise distribute) copies (even the ones they have not made themselves). That is it. It doesn't cover anything else than the act of distributing. Using something is not distributing.

As an added note, the distribution right of copyright work is really not as exclusive as it might seem from only reading this clause though. In most countries this right is consumed in such a way that it only applies to the first initial distribution. (on a per copy basis). After that, the copyright holder can't control the distribution of that copy any more. That is why, after having bought a book or a computer program or whatever, is free to sell it or give it away or do whatever I want. Usually the act of rental is NOT consumed though, so you can't rent it, but other distribution forms are OK. In US copyright law, this is covered through the first sale doctrine I believe which, I think, is more or less as I described here but with some variation. In any case, this is quite off topic for our discussion of use since distribution is not part of use.

I said I'd get back to the bottom line in a minute, and here we are.

Great! :)

See, the problem here is that you seem to be under the impression that you have a right to purchase their work.

No, I don't think I have a "right" to do it. But if they want to sell copies, then yes, I am buying them. If they don't like the concept to people buying, they can of course stop selling, but then it would be sort of pointless for them to create it from the start of course (they can of course also go for a rental option, like you do when you rent a movie. This is sort of impractical for computer software though I would say, since you typically would like to use it for longer than just a few days. I believe there are possibilities to rent console games though.


Continues...

[Jarulf]

...continued

You don't.  First, you can't purchase their work in the sense that you're thinking of, because regardless of how many copies of Windows XP you buy, Microsoft still owns it.

As I said above, you are confusing "owning" the work (typically called owning or holding the copyright to the work) with owning individual copies of the work. Two very different and non related things. You buy individual copies of a work just fine.

That aside, Microsoft most certainly has the absolute and inalienable right to tell you, "Yes, we will sell you the right to use our software, so long as you abide by the conditions we set."

That has nothing to do with copyright though. Someone selling you a char or a car can do the same thing. This is typically regulated through (consumer) sales laws though and in most (or many) countries, exactly WHAT type of demands or provisions the seller can include in a sales contract is limited. Besides, normally I buy computer software from a store and I have never ever made any additional contract there with anyone else but the store.

I don't understand why you don't get this.

I can't understand why you can't get the difference between owning/buying the copyright to a work and buying/owning individual copies of a work. When you see that difference (which is also clear and mentioned in copyright laws) there is really not much difference between computer software, books, chairs and cars (for example). There is no problem with someone owning a book, but someone else holding the copyright to the work in the book.

When you buy software, the only thing you can possibly be purchasing is the right to use it.  What the hell ELSE do you think you're buying when you buy Windows?

A copy (material, fixated in another, material, object, typically a CD or DVD for computer software). What is so strange about that?

  Coasters?  Frisbees?  Shiny discs with which to make art projects?  You're certainly not buying the software itself, and I know you understand THAT much, so what else could you possibly be paying money for?

And once you answer that question for yourself, you'll see just how silly it is for you to try and argue that a software company "can't" sell you a "license to use" their product.

To this I can only answer that once you see the difference between copies of a work and the work itself, you will see just how silly it is of you to believe you can't buy copies of a work (including computer software).

No.  It is not.  Under clause (3) of section 106, the copyright holder is given absolute and complete control of the means of distribution of their work, which means they have the absolute and complete right to tell you how you may and may not use it as part of the terms of sale.

Again, see above, this clause only tell they have the right to do the selling (typically initial, they can't control for example the sale of used copies and such). That is it. Anyone else doing it makes them commit copyright infringement.

The act of selling and any possible contractual regulation of a sale, has nothing to do with copyright but with contract and sales law. That can be done just as much by someone selling a chair. Contract and consumer sales laws are what regulate this and what can be done. Still, tossing in a "license to use" software is as silly to toss in a "license to sit" when you sell a chair since there is nothing to forbid it to start with.

What's your point?  I only brought up fair use to point out that it's the only place in US Copyright law where "use" is defined or addressed, in contradiction to your insinuation that you have some right to use copyrighted works in any way you see fit.  The lack of prohibition in this case is NOT a granting of rights.

Excuse me, that is how copyright work, the things you are not disallowed (by given as exclusive to copyright owner) is allowed. So yes, you can do as you see fit as long as it is not disallowed by the copyright law (or other law of course, if you use a computer program to commit fraud versus your bank, you are doing something illegal, it is, however, most certainly not a copyright infringement).

  The copyright holder has the absolute and complete right to determine what may be done with his/her/its work.

No he most certainly does not. What makes you think so? Please tell me were in the copyright law it says that the copyright holder can do that?


Continues...

[Jarulf]

In most cases, they don't bother to outline what they consider to be acceptable use; if you buy a CD, it's pretty well assumed that you're going to, you know, listen to the damned thing.  Anything they don't want you to do with their music is clearly already forbidden by copyright law itself.

Again, no it is not, and most definitely not in your third clause. If that was the case, wouldn't you think that they would have written instead that no one but the copyright holder may do anything or that all and every right is exclusive to the copyright holder? Instead of list a few selected ones? Don't try to read in more things into the exclusive rights that what they say.

  But your entire argument has been based on the fallacious argument that software companies do not have the right to dictate the terms under which you may use their product, and you're absolutely dead wrong.  And since they can dictate those terms, it is perfectly legitimate to say you have a "license to use."
Unless the work is sold to the consumer under terms and conditions, which is the entire thing we're talking about.

I am talking about copyright (and your initial comment I replied to did as well), conditions of sales have nothing to do with copyright at all but with contract and sales laws.

In addition, a contract is only binding by the parties that agree to it. Meaning if I don't agree, I am not bound about it. So even if you DID in some way have such agreements (not connected with copyright) at most, you could hold the buyer accountable for it. Not for example anyone else. Further more, the contract would not be a "license to use" since you already have that but instead a "restriction license" or contract or whatever, telling stuff you can no longer do. Since again, telling you that you can use something that you already can do is pointless and does not turn using it without such a license not allowed. I think you need to read up on contract laws as well and the point of them.

Yes, and that's exactly my point.  The terms under which a copyright holder distributes his work supercede the implied rights granted to the consumer.

So you want to discuss copyright or you want to discuss sales and contract law? Make up your mind and don't claim copyright regulate how sales and contracts are done.

Your right to use a copyrighted work after purchasing a copy of it can be limited by the terms of sale.

So can my use of a chair after purchasing as well!!!! What’s your point?? In addition, and fortunately, most countries (no idea about USA though) have sensible consumer sales laws that forbids unfair such contract clauses in consume sales related issues. So most likely there can only make some limitations.

  The fact that this isn't in the copyright law is completely irrelevant.

Since the discussion was about the copyright law and what it says (and since you have then claimed it is the copyright law that give such a right) I can't see otherwise. Recall the initial comment I was replying to which started:

Code:

"It's an interesting twist in the way copyright law is constituted. When......"

That is what I am commenting about and I am stating that there is no such thing in copyright law that makes use an infringement or a license to use needed. I can now amend it if you want to say that when selling something, even non copyright related, there is no need to add in a "license to use" since even if you sell chairs there is nothing forbidding you to use it. You can add contract to the sale that regulate many things but no need to put in it an added license to use.

Are you actually trying to argue that because one thing is in one law and another thing is in another law that the two things have nothing to do with one another?  The right to force you to accept terms of use as part of a sale of copyrighted material is an example of combining two different laws in a completely legal fashion, in order to achieve a desired result.

It has nothing to do with copyright law and can be equally done with anything you sell. To be completely correct, it really has nothing to do with the sale either since it is a contract between you and someone else than the seller as well. There really IS no connection to copyright laws as far as "terms of use" is concerned since copyright law does not deal with use (normal use) at all. It only deals with a few special actions, namely a few, listed rights given to the copyright holder, which has already been quoted in this thread. Anything else has nothing to do with copyright.

Continues...

[Jarulf]

Microsoft owns Windows XP. 

I think this terminology that confuses many. They hold the copyright to it, or owns the copyright. That does not mean they own individual copies of it since that is unrelated to copyright. Typically they would initially own most of such copies though since they are the only ones allowed to create new copies (although exceptions exists, such as a backup copy). You, as well as many others confuses these two ownerships, of the copyright to the work and of individual copies of the work.

Microsoft is under no legal obligation to grant you an unlimited use of their product, period.

Of course not, they can keep it completely to themselves, never sell it or tell anyone about it, that is however quite pointless.

Therefore, Microsoft sells you Windows,

I thought your position was that they could not sell (or at least that I could not buy it). Make up your mind.

and grants you a license to use it under very specific terms and conditions.

They already sold it, no need to grant anything additional right of using.

You may choose to purchase that license and then use it as stipulated, or you can choose not to use it at all.

Or if I have a legally acquired copy, I can use it without any need to buy such a license and be fine with it. You seem to want to imply I am thus infringing their copyright. Please tell me how and what part of the copyright law (or contract law for that matter, but assuming I for example was given a copy by a friend who might have bought it , just as example of not being sold directly by Microsoft) I am not bound by any such contract since I have not entered anyone.

Except it's not wrong, because you stubbornly refuse to accept that a copyright holder can impose terms on what you may or may not do with their work as part of the terms of sale.
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I refuses to accept that it has ANYTHING at all to do with copyright law until you tell me were in the copyright law it says the copyright holder has an exclusive right to USE a work.

You can switch topic and discuss sales/contract laws and what applies there, but then, please leave out copyright since it has nothing to do with it. I am very fond of that area of laws too. One problem there is of course that (consumer)sales laws and contract laws differs a LOT more between countries than copyright law do. Just make your choice, but don't mix them up! And don’t claim one of the laws is dictating what is really dictated by another law!


The end. Phew!

[Darian]

not bothering to continue the quote war
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You see, under US Copyright Law, when you purchase a copy of a work, there's this thing called the Doctrine of First Sale, addressed in section 109. What it means is that when you buy a book, or a painting, or whatever... you can turn around and sell that copy of the book to anyone you want. The Doctrine asserts that the copyright holder gives up his right to distribute THAT COPY of the item once he sells it.

If you were correct, this would be the end of it; it would mean that the terms of sale are irrelevant, because once you own it, you can dispose of it as you like, provided you're not violating copyright laws by making copies.

There are two problems, however, and I will admit I was not particularly clear on this previously. (1) Section 109 specifically contains exceptions related to audio recordings and software (the Record Rental Amendment of 1984 and the Computer Software Rental Amendments Act of 1990). (2) What if the software company is not, in fact, selling you a copy of the software, but... wait for it... a license to use it?

The amendments referred to in (1) boil down to "while you can do whatever the hell you want with books and paintings and sculptures, you can't lease, rent, or lend recordings or software." Selling you a license to the software, rather than selling you a copy of the software, dodges the Doctrine of First Sale. You accuse me of being "confused" regarding who "owns" Windows XP; since you're being sold a license, Microsoft certainly does still own Windows XP -- including the copy of it you're using. All you own is the right to use the software.

US District Court for the Eastern District of Missouri, Davidson & Associates v. Internet Gateway Inc (2004)":

Code:

"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement."

"The defendants .. expressly consented to the terms of the EULA and TOU by clicking 'I Agree' and 'Agree.'"

And that's where your argument runs aground, Jarulf. When you "buy" Windows XP, you are not purchasing a copy of the software. You are purchasing a license, and in conjunction with your purchase of that license, Microsoft is providing you with a copy of the software. As part of the terms of that license, Microsoft most certainly may dictate to you terms of use, and until legislation is passed amending sections 106 and/or 109, barring copyright holders from choosing to license their work rather than selling a copy of it as a means of distribution, it'll stay that way.

[Darian]

Continuing the quote war, because I forgot something:

You can switch topic and discuss sales/contract laws and what applies there, but then, please leave out copyright since it has nothing to do with it. I am very fond of that area of laws too. One problem there is of course that (consumer)sales laws and contract laws differs a LOT more between countries than copyright law do. Just make your choice, but don't mix them up! And don’t claim one of the laws is dictating what is really dictated by another law!
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You have, on repeated occasions in this thread, taken a blanket statement that something is or is not illegal, and then tried to argue that the commentor was incorrect in some fashion simply because that matter is not covered in copyright law itself. You've been doing it with me for two days, and you did it with Raelynn when he said, and I'm paraphrasing, "Owning a copy of something that hasn't been released yet is illegal."

I never said that under copyright law, Microsoft is selling you the right to use their software. I just said Microsoft is selling you the right to use their software, and because you can't find anywhere in copyright law where that's allowable, you started arguing and demanding that I show you where, in copyright law, they have that right.

Raelynn never said that under copyright law, owning a copy of something that hasn't been released yet is illegal; he just said it was illegal. You got all pedantic with him and explained why that's not illegal under copyright law -- then noted for yourself that it IS illegal, because it's being in possession of stolen property.

Law is not compartmentalized. Any action anyone takes at any time may be applicable to several, dozens, hell hundreds of different laws scattered around multiple pieces of code (especially when it's a matter of commerce). The ability to sell you a license to use a copyright work is not just a matter of copyright. It's covered in copyright law, the Clayton anti-trust act, and common contract law. You can't just look at one of them to determine what's acceptable.

Perhaps I was unclear when I said that it was an interesting twist in the way copyright law is constituted, since it really does rest more within the realm of contract law, and the "right to use" something isn't limited to copyright materials; see: leases (license to use a domicile), car rentals (license to use a fleet vehicle), tickets to a football match (license to sit in an uncomfortable seat for three hours), etc. However, it IS a function of the way copyright law is constituted thanks to (1) section 109, its exceptions, and the methods by which software companies avoid even allowing section 109 to be applicable to their transactions and (2) section 106 and its inalienable right for the copyright holder to control the means of distribution for their intellectual property.

I refuses to accept that it has ANYTHING at all to do with copyright law until you tell me were in the copyright law it says the copyright holder has an exclusive right to USE a work.

I never said that... did I? If I said that, I wasn't clear. A copyright holder has an exclusive right to dictate the acceptable uses of their work, and they have this right because (1) they control the distribution and (2) they can control the means of distribution by refusing to sell representation of the work unless you, the purchaser, agree to certain terms. If they do not make these specific declarations in the form of licensing the material, then you, the consumer, are of course presumed to have full right to use the work as you see fit within the bounds of existing copyright law... but their ability to force you to agree to certain terms as a condition if sale does act as a limitation on your right to use the work.

For a right to be a right, it must be absolute within the scope of the granted right. You can't say "You have the right to use this how you see fit except when we say you don't," because then you really don't have any rights at all; they can be taken away at whim. As such, you don't have the right to use a work how you see fit; the copyright holder has the right to dictate what rights you do have. Yes, 99% of the time, the copyright holder says (by omission) "Yeah, whatever, do what you want." But they CAN impose restrictions on you.

[Fragbait]

US District Court for the Eastern District of Missouri, Davidson & Associates v. Internet Gateway Inc (2004)":

CODE
"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement."

"The defendants .. expressly consented to the terms of the EULA and TOU by clicking 'I Agree' and 'Agree.'"


And that's where your argument runs aground, Jarulf. When you "buy" Windows XP, you are not purchasing a copy of the software. You are purchasing a license, and in conjunction with your purchase of that license, Microsoft is providing you with a copy of the software. As part of the terms of that license, Microsoft most certainly may dictate to you terms of use
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Hi,


Since you obviously thought about this subject for a while now, may I be allowed to ask a question:

What happens if you know nothing of this EULA thing and just know the brand Microsoft, and buy a PC that already has it preinstalled when you get it?
If I remember right, my Acer came with it preinstalled, and I didn't even have to click OK to any EULA. Can I do everything I want to with it? Like Sell, alter or copy it? (I know it's not that easy nowadays because they only give you recovery cds, but in former days - say Win95).


Thanks, Fragbait

[Darian]

Hi,
Since you obviously thought about this subject for a while now, may I be allowed to ask a question:

What happens if you know nothing of this EULA thing and just know the brand Microsoft, and buy a PC that already has it preinstalled when you get it?
If I remember right, my Acer came with it preinstalled, and I didn't even have to click OK to any EULA. Can I do everything I want to with it? Like Sell, alter or copy it? (I know it's not that easy nowadays because they only give you recovery cds, but in former days - say Win95).
Thanks, Fragbait
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Aha, a very clever catch of a loophole!

In Softman v. Adobe (2001), a district court in California held that an attempte to impose an EULA without the consumer actively consenting to the EULA (either by using prompts during install, or by specifically opening a package with a clear label stating that opening the package constitutes consent to the terms printed on the exterior of the package) is legally unenforceable. In this specific case, the court held that it was perfectly legal for the consumer to sell the bundled software packages which came with his computer, since he never agreed to the individial EULAs.

A clever read on this would indicate that there is, in actuality, no such thing as an OEM license, unless the terms of the license are clearly spelled out and agreed to by the computer's purchaser prior to purchase... which, as we know, never happens. Because the computer itself is a durable good, you cannot be expected to return the computer to the store because you disagree with the EULA on the software which was installed on it, even if you have to click-through an EULA when you fire it up. That's just a guess on what the court would say, as I don't know of any case law relating to it.

However... and there's always a however.

If you bought the computer with the software pre-installed and without the actual media included (very common these days), what it boils down to is that you could use the software yourself in any way you see fit, and you can of course sell the computer itself -- but there's no way you could possibly transfer the software itself, as doing so would require copying it in some fashion.

[Raelynn]

On a slightly sideways topic concerning the DMCA, what do you guy think of the ruling against a man who created ROMs of game boy games, was hit with circumventing copy right protections and then claimed that there were no copyright protections on the game boy cartridges?

I do not know the outcome of this case, most likely won by Nintendo because of their access to lawyers, but more importantly I wanted to know if you thought the man's arguement was solid. Does the DMCA protect against all copying or only against circumventing the protections?

I understand that technically the normal copyright laws make the copy of the data illegal, but Nintendo actually took him to court for circumventing the protections as protected by the DMCA, not for the actual copyright infringements.

[Darian]

On a slightly sideways topic concerning the DMCA, what do you guy think of the ruling against a man who created ROMs of game boy games, was hit with circumventing copy right protections and then claimed that there were no copyright protections on the game boy cartridges?
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If there was any form of copy protection on the cartridges, then he'd be in violation of the DMCA --

Unless, of course, he cracked that protection prior to the passage of the DMCA, since the US Constitution expressly forbids ex post facto legislation. You can't be charged with violating a law if it wasn't a law when you violated it.

[Raelynn]

If there was any form of copy protection on the cartridges, then he'd be in violation of the DMCA --

Unless, of course, he cracked that protection prior to the passage of the DMCA, since the US Constitution expressly forbids ex post facto legislation.  You can't be charged with violating a law if it wasn't a law when you violated it.
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As far as I remember, there just wasn't ny copyright protections on the cartridge. Nothing at all prevented him from just connecting and copying the data from it.

[Jarulf]

In Norway I can copy a CD and give it to my friend as a gift. I can give a copy to my whole family and every friend I have, in fact.

Are you sure? I admit I have no clue about Norwegian copyright law but I assume it is similar to Swedish. In Sweden you are also allowed to make copies and also distribute them to close friends and family. However, there is also a restriction in the number of such copies, you can only make a few. So even if you have a very large family and you are allowed to give family members such copies, you can't do it to all of them. No idea if the Norwegian copyright law has the same restrictions, but it is work checking.