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The Courts Government News

The DMCA Vs. Small Developers 231

bumppo writes "Matt Warner, a Mac developer and IT guy, writes about his experience trying to use the DMCA against a much larger software company that unilaterally lifted his TV tuner/converter app and bundled it with their hardware product, even hawking it on the side of the box. He explains why he didn't get very far, and sees plausible implications for the GPL." One lesson here seems to be that though registration of copyrighted materials may not be necessary for them to be given legal protection, it goes a long way toward preventing such usurpation. (Note that the FSF is careful to copyright the code it releases under the GPL.) And DMCA or not, shareware and other non-retail software has been incorporated into collections without permission quite a bit before.
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The DMCA Vs. Small Developers

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  • by Anonymous Coward
    If you create something, and then give it away, why get upset when someone else gives it away too? They're not selling this guy's software, it seems that they're selling a USB video camera. The only thing this guy asked was for a postcard or $10 donation. He got his product distributed to a bunch of people for free, and hopefully some of them sent him postcards or cash. If not, then it's the end user's problem, not the mean old corporation's. The company had no more responsibility than any ISP who may host his software on an FTP site. They only provided the CD.
  • by Anonymous Coward on Monday April 02, 2001 @11:44AM (#320017)
    IANAL, but perhaps someone who IAL will say whether something like this will work.

    In your license agreement, state the following: "By distributing this software outside the terms of this license agreement, you agree to pay the author a license fee of $1 billion per copy. Failure to pay within 90 days will result in a late fee of $1 million per day."

    Will this work? If not, why not? OK maybe $1 billion is excessive. Is there any amount which will stick (or at least attract lawyers to take the case?)
  • by Anonymous Coward on Monday April 02, 2001 @02:26PM (#320018)
    First, the guy failed to GPL his work.

    Second, he failed to register his copyright.

    Third, the GPL is a *license*. The L in GPL. It's a license on top of a copyrighted work. From the gnu site: "We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software."

    FSF does register their copyrighted works, as noted.

    So this story has implications with respect to The only conclusion I can logically reach is that he coulda, shoulda released it under the GPL so as to protect himself from this.

    The Copyright Office page explains why it is advantageous to register the copyright, even though the work is copyrighted without that step being taken, precisely so you *can* sue, if needed. Anyone who skips this step of registration appears to be not well enough informed. (Another good reason to release under the GPL. . . They have expertise you probably lack. Or at least consult a lawyer. Or at least get the US Copyright Office's booklet on protecting your intellectual property.)

    Here's their explanation on the US Copyright Office website:

    "In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

    "Registration establishes a public record of the copyright claim.

    "Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

    "If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

    "If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    "Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, request Publication No. 563 "How to Protect Your Intellectual Property Right," from: U.S. Customs Service, P.O. Box 7404, Washington, D.C. 20044. See the U.S. Customs Service Website at for online publications. "

    Bottom line: ill-informed attacks on the GPL are ill-informed. Slashdot seems to go out of their way to post such stuff. Maybe it's time to read and think more precisely. Consult your attorney before you wax poetic about the beauties of releasing under your own concepts of what constitutes enough protection. Otherwise, you risk being the proverbial lamb to the slaughter. I wish I had a dollar for every post on this forum about how the GPL "limits" freedom. And it does. It is designed precisely to limit the freedom of people or entities who desire to rip other people off.

  • by Anonymous Coward on Monday April 02, 2001 @11:25AM (#320019)
    This reminds me of something that happened to me one time. I had made a nice bit of software ( my lawyers I can't be epxlicit about it) that you've probably heard about. Lo and behold, one day a friend asked me about the Xxxx package in a certain operating system out of Washington, and how much it looked like mine.

    Well, I checked out the operating system, and it was nearly a clone. I called my lawyer, showed him the two apps side by side, and he agreed. We were on teh next plance to Seattle.

    Amazingly enough, this corporate software giant agreed to meet with us. We were ushered into a quiet, comfortable conference room to meet with an IP lawyer.

    Soon enough, the IP lawyer came in. Our jaws dropped to the floor, she could have been on Ally McBeal. She was a tall, long legged redhead with a skirt that couldn't be much shorter. She sat next to us, arranged her skirt to pointlessly try to cover herself, leaned forward, her ripe breasts straining to get out of her dress blouse, and quietly asked "How can I help you two?"
  • by Anonymous Coward on Monday April 02, 2001 @11:42AM (#320020)
    Anyway I have a pretty good idea of how it turned out. Big company simply rolled over him in court. Perhaps when we grow up to be big and strong, we can purchase some laws and justice of our own. And one day be president....

    This reminds me. When I was very young, I rememer kids who would say what they wanted to be when they grew up. You'd get "fireman" "policeman" nurse, president, and occasionaly some kid would want to be a bird or some other non-human creature. I always thought that was kind of funny.

    I guess the joke was on us all though. Because we all grew up to be something less than free. Votes that don't matter because "counting" errors and politicos who don't do what they promise, and the laws that impact our lives can be bought and sold like condoms out of a vending machine.

    And of course, those very same laws are interpreted broadly, depending on who is to be judged by them.

    Oh yeah I'm cynnical. I'm generation X. And this country is turning into a fucking shithole.

  • Either you can find a lawyer who will take your case on contigency, or you can sell the rights to your software to someone who'll do it just for the potential revnue from the law suit.

    Nobody likes either of those parties, but sometimes they perform a vital societal function.
  • Spam is more likely to be deleted than read. (Or, if it's in a State in which spam is illegal or has to conform to specific stringent requirements, the spammer may well find themselves burned in their desire to be of help.)

    IMHO, you'll get a better reaction through firm (but polite) disaproval than you will from roasting their mail server.

  • That =was= true. Unfortunately, some subtle changes to Copyright and Trade laws have made EULA's effective if you so much as glance sideways at the box they are in.

    (In fact, more than a few products now carry notices to the effect that sneezing within 500 miles of the wrapper constitutes agreement to the EULA, even if it's sealed inside a titanium case at the bottom of the Atlantic Ocean.)

  • Because you didn't buy the product. Computer software hasn't been sold in decades. You buy the EULA, which (usually) says that you can't resell the licence or the supplied software, on pain of being handed to Cthulhu.

    (Besides, under certain cases, tying two products is also illegal. Microsoft got caught on that one, and only escaped by convincing the appeals court that a web browser is really an Operating System in disguise.)

    Lastly, the purchasers of the manure might complain about toxic contamination.

  • by jd ( 1658 ) <imipak AT yahoo DOT com> on Monday April 02, 2001 @11:53AM (#320030) Homepage Journal
    First, "limited distribution" has always been a very grey area with copyright. Fanzines rely on it to avoid getting sued, and it's generally effective there.

    This means that the CD-ROM may actually fall under all sorts of "fair use" and reasonableness clauses. If it did, that wasn't the guy's fault, it was yours for not understanding the relevent law.

    Second, the GPL does not rely on copyright. Truly "GNU" GPL programs have to be registered, the source must comply with certain licence message requirements, etc, to ensure that the GPL is definitely in place.

    Third, EULA's are not legally enforcable in most of the US. (Virginia and Maryland being the two exceptions.) To rely on an EULA for protection is, frankly, naive. (The only reason large companies can ue EULAs is that 500 lb gorillas can do pretty much what they like.)

    Last, I would be more sympathetic, except that the post looked very much like a "poor me, victim of this big meanie". Now, the small-time developer can be very much a victim, but this doesn't look like a case of that, to me. It sounds like an honest mistake by a small-time company that got blown WAAAY out of proportion by a greedy developer.

  • I'm sorry, moderate the parent down. Only Americans need to register their works in order to bring suit. Both Americans and foreign nationals need to register to be eligible for attorney's fees and statutory damages.

    This is proof that there needs to be a copyright FAQ, when even the copyright students screw it up.
  • by troyboy ( 9890 ) on Monday April 02, 2001 @12:23PM (#320037)
    Yes, a copyright FAQ for Slashdot is an excellent idea.

    Another point that is relevant to this discussion is that only American programmers need to register their code with the Copyright Office to get statutory damages and attorney's fees. Foreign nationals don't have to do this because of the United States international copyright treaty obligations. Anyone who is interested can look directly at the provision in the legal source, the U.S. copyright law, 17 U.S.C. section 412.
  • What if you change the code by just a variable name? If you have to get a new copyright on every cvsupdate you make...

    You are correct, to the extent that new major versions require a separate copyright filing. See "Copyright Registration for Computer Programs" at

    To obtain the full benefits of registration, each separately published version of a given computer program must be separately registered, provided each contains a sufficient amount of new or revised authorship to sustain a claim to copyright.

    So syntactical changes and bugfixes wouldn't apply. And updating a CVS tree may not exactly be "publication", which the actual copyright form defines as "if copies have been distributed to the public", as long as the tree is intended for private purposes -- which can include developers and maybe even beta testers (aka the freshmeat community). But you should definately do your own research, since the issue of what constitutes public distribution is not as clearly cut...

    I'm not stoned, I just chugged a pack of fUN dIP!
  • by HiThere ( 15173 ) <charleshixsn@ea r t h l i n> on Monday April 02, 2001 @12:00PM (#320041)
    Try reading the GPL before spreading misinformation.

    Caution: Now approaching the (technological) singularity.
  • Correction: The DMCA is a law that was enacted to protect the copyrights of rich businesses on the Internet. It was not meant to protect the labors of smaller developers and those who actually created the Internet. This country no longer belongs to the common man, but to corporations with enough money to buy and sell you a thousand times over. Your government apologizes for any inconvenience.

    How much it would cost for the people to have some rights, too?
  • what did you expect? When you buy a law you make sure it can't be used against you.

    This is insightful? Praise God for meta-moderation.

    Read the article. This isn't even about the DMCA. It's about the fact that going to court costs money. It's about the fact that the average American doesn't have that money to spend.

    This guy could EASILY have won a court battle assuming he had equal resources with which to hire attorneys. The problem was not in the law, but in the legal system itself.
  • by Sancho ( 17056 ) on Monday April 02, 2001 @11:37AM (#320048) Homepage
    But upon reading the article, you notice that the guy never took the matter to court. This isn't an issue where the DMCA failed a small developer. Rather this is an issue where the US court system failed the individual. The DMCA certainly doesn't gaurantee financial resources to sue, nor does it gaurantee that someone will settle out of court when they are faced with it. In fact, the DMCA really doesn't merit mention in this article, because the injustice has nothing to do with the DMCA or even copyright law in general--it has to do with the fact that large corporations will always have the money to win lawsuits because the little guy can't cough up $20k to take the issue to court.
  • Ok, as has been said in the comments already, the problem was that this guy didn't have enough money to fight the big badguy.

    A question that hasn't come up, however, is in regards to the DMCA provision for filing copyrights on your software.

    Indeed, it looks as though this guy could have made quite a pretty penny on his software if he'd just filed for a copyright on it originally. But then, the real question is, how often do you have to do this? For example, going over to freshmeat will show you that a GREAT deal of very good software is in beta or lower stages. Do you have to get a copyright on this? What if you change the code by just a variable name? Small changes could end up costly due to the copyright filing charges.

    This means that the copyright system in general is anti-free software. If you have to get a new copyright on every cvsupdate you make, there is no way any individual working out of his or her garage could manage this. Sure, you may file copyright on version 1.0, but when you release 1.2 (which adds few new features), suddenly that version is not copyrighted?

    I'm asking if this is the case because I truly don't know, but from my limited understanding of copyright law, derivative works aren't included (at least, in filed copyrights).

    This means that the GPL and Open Source models will always be behind closed source, proprietary software.

    Sucks, doesn't it?

    Could a solution be to copyright the major versions, and then to provide diffs to update them to minor versions? This way a company might steal the diffs, but without the original software+source code, they'd be largely worthless, and you'd still have a leg to stand on in court, not to mention the possibility of puntitive damages.
  • by mattbee ( 17533 ) <> on Monday April 02, 2001 @12:40PM (#320050) Homepage
    I'm pretty sure all that's practically necessary is that you put all your work onto a CD / floppy, post it to yourself by registered delivery and leave the envelope unopened. You can even lodge it with a bank if you're feeling paranoid. But then if you need to prove you wrote it first, you've got a sealed package with a stamp from the Post Office which you can open in court, and this is cross-checkable with the PO's records.
  • > Second, the GPL does not rely on copyright.

    I don't think that is the case. If there wasn't copyright law, everything would effectively be public domain and the GNU GPL would have no effect whatsoever.

    Leandro Guimarães Faria Corcete Dutra
    DBA, SysAdmin
  • It kind of injures me because his code isn't GPL'd, but he kind of uses it as some fighting call.

    Leandro Guimarães Faria Corcete Dutra
    DBA, SysAdmin
  • License terms on version 1.0:

    "Matt's Hack TV, Version 1.0 Portions of application ©1998 Matt Warner Portions ©1992 by Apple
    Computer, Inc. 'Email-me' ware: drop me a short note to let me know if you find this application useful. The application
    is free and is not to be sold. There are no guarantees nor warranties regarding this software."

    So Ariston sold it, even if it was in a bundle.

    Leandro Guimarães Faria Corcete Dutra
    DBA, SysAdmin
  • > It's only $30 to file a copyright deposit with the Library of Congress. And once you do that, the clock starts running on willful infringement and statutory damages.

    What should you do if you have an OSS project and follow the "release early, release often" paradigm?

    I have a GPL'd project that is out in pre-release form, though nowhere near ready for actual use. If I register it now, would I also need to re-register it every time I let a new version out?

    Patents may be an issue as well; I am incorporating some novel features into the project, and I'd hate to have some jerk go out and patent them after seeing my demo.

  • Summary: The DMCA provides for either statutory or actual damages. If you don't have a registered copyright, the courts currently say you can only claim actual damages.

    His stuff wasn't registered, and the company won't negotiate, so his only option is to go to court. And as it wasn't a registered copyright, he can only sue for actual damages, which could cost a bundle, and is harder to prove. And he can't afford it.

    So what he's really saying, unless I misunderstand, is that the DMCA doesn't protect the little guy because you still have to go to court, and lawyers cost money....... I don't really see how that's failure.. that's, unfortunately, how law works.

    The implication for GPL is more obvious: How do you prove actual damages on GPL or other open-type license code? Who actually can claim the 'lost profits'?
    What he says, remember, is that you can't claim statutory damages (which gpl violators would be liable for) unless the copyright was registered.
  • Copyright covers only the embodiment of an idea, not the idea itself,

    Copyright covers the EXPRESSION of the idea.

    MOVE 'ZIG'.
  • Did the company send the writer an email telling them how they liked the program? No. Therefore, they were breaking the terms of the license.

    The way the suit at the company dodged around the issue, trying to argue that the program wasn't very good, so they shouldn't compensate the author, is pretty damn slimy.
  • by Moofie ( 22272 ) <lee@ringofsatur n . c om> on Monday April 02, 2001 @12:03PM (#320065) Homepage
    If I invent a widget, and give it to people out of the goodness of my heart, and some schlock takes my widget and starts selling it for profit, that's Wrong. Somebody is taking advantage of my good nature. How can you possibly think this is justified?

    The author doesn't want to make a buck, he wants to protect his work from being exploited.
  • Theft is when you deprive the original owner of their property. Check a dictionary.

    The law is irrelevant to this. Theft involves depriving the original owner of the PROPERTY, not of a potential to make money, or of sole ownership.

    That being said, what was done is against the law. Yes. You should be able to sue, but I agree, you'd never win against someone bigger.

    But use the correct terminology. Piracy means theft and murder at sea. Theft means depriving of property. Redefining those terms to mean something completely different doesn't make it so...
  • Um, that can pretty much be said of any law, though... or any aspect of society.

  • That's OK, /.'s massive productivity drain on the world's information technology industry will never be offset by people doing something useful with /.

  • Thank heavens for the insightful person who modded this post down as overrated. Unfortunately, due to the idiosyncracies of the karma system I derive a net -1 karma from this post.

    ObNotBitchingAboutSlashCode: DMCA is not the only law ever bought. I didn't mention it. I meant laws in general.

  • The title of the article was indeed DMCA. However, the article was only tangentially about the DMCA, and mostly about how justice in the USA has been replaced with trial by financial combat.

    So, yes, -1 Offtopic for my post, but -1 Troll for the article.

  • by Rupert ( 28001 ) on Monday April 02, 2001 @11:27AM (#320072) Homepage Journal
    what did you expect? When you buy a law you make sure it can't be used against you.

  • The definitive resource for copyright is [].
    They have a FAQ and the forms.
  • by spectecjr ( 31235 ) on Monday April 02, 2001 @12:25PM (#320075) Homepage
    The problem is, that according to his site, version 1.0 is free, and version 2.0 is shareware.

    This means that Ariston can FREELY redistribute it on their CDs, as long as the end users abide by the license terms.

    License terms he gave on version 1.0:
    "Matt's Hack TV, Version 1.0 Portions of application ©1998 Matt Warner Portions ©1992 by Apple
    Computer, Inc. 'Email-me' ware: drop me a short note to let me know if you find this application useful. The application
    is free and is not to be sold. There are no guarantees nor warranties regarding this software."

    License terms he gave on version 2.0:
    "Matt's Hack TV, Version 2.0, October 1998 Portions of application ©1998 Matt Warner Contact Info:
    or Portions ©1992 by Apple Computer, Inc. $10 Shareware. There are no
    guarantees nor warranties regarding this software.

    What it does: Matt's Hack TV allows you to take advantage of your Power Macintosh AV input and output ports to convert,
    in real time, NTSC to PAL, NTSC to SECAM, PAL to SECAM, or whatever combination. What you need is two video devices (two
    VCRs, for example) which understand the appropriate video standard and your Macintosh will do the rest. I've only been
    able to test the PAL NTSC aspect, but I don't expect there to be any problems with SECAM functionality.

    One user has setup his Power Macintosh to his satellite system so that he can watch PAL broadcasts on his NTSC TV, in
    real time!

    I can't speak as to the quality of the Analog converters (DAC) used in the Power Macintosh, but I suspect that it does
    not match the quality found in professional or dedicated systems. But hey, if you already own a Power Macintosh, it's
    practically free (excepting the cost of the PAL VCR or camcorder).

    Related Info: How do I setup my Power Macintosh for video standard conversions? The first step is to make sure that you
    have RCA or S-VHS plugs connected to the ports at the back of your machine. Then, you must restart so that the Macintosh
    goes into a dual-screen mode. You might notice that your main screen doesn't have as many colors available to it since
    part of the video RAM is being used to drive the virtual monitor for the video-out port. If you either connect the input
    video to the output port or have a VCR plugged in and turned on, you should be able to see what's displayed on the
    virtual monitor (and goes to the video-out port). You should at least see your desktop pattern. Launch Matt's Hack TV
    and set the input type to PAL, even though your virtual monitor is likely set to NTSC. Move all windows out of sight and
    open the Monitors & Sound Control Panel. Move the main window out of the way (window-shade it even) and you'll be able
    to see a second window that sets the characteristics of the virtual monitor, including bit depth and resolution. To
    access the monitor, you'll have to move your mouse off your main screen and onto the virtual screen. For PAL output,
    choose one of the PAL settings. For NTSC or SECAM, choose the appropriate setting.

    Where to buy PAL equipment: I bought a PAL-system VCR through the mail from B&H Photo and Video in New York (I'm on the
    west coast of the USA). Their web site is They also sell professional equipment and had
    reasonable prices, so I felt pretty comfortable buying from them. And no, I am in no way affiliated with them (wouldn't
    that be nice!).

    Hey! My color picker stopped working! Actually, it's a problem with the color picker itself. The color picker
    automatically chooses the deepest-pixel-depth monitor, which (if you have the problem) is the virtual monitor.
    Unplugging the video-out jack and rebooting will restore expected behavior.

    Background: I wrote this software to use in conjunction with a PAL-system VCR to which I transfer home video in
    originally shot in NTSC. This way I can send video to friends overseas. I looked around for an application which
    performed a similar task, but couldn't find one. So I wrote my own, based on sample code found at Apple's QuickTime
    site, written by Gary Woodcock and called Hack TV.

    With version 2.0 I added menubar hiding (thanks to sample code from David Hayward at Apple DTS), preferences file
    support (thanks to Jim Luther, Apple DTS Emeritus), and clipping support.

    Change History March 1999. Minor change to fix compatibility issues with third-party digitizing cards, such as the iREZ
    Capsure for PowerBooks.

    October 1998. Added Appearance Manager features (now required). Added a proper preferences file. Added clipping feature.
    Changed background blackout functionality for better reliability. Added Òhide menubar option.Ó Squashed,
    created, then squashed innumerable bugs. Now $10 shareware.

    March 1998. Released as version 1.0.1. Changes to documentation.

    March 1998. Released as version 1.0.0 First release.

    Esoterica Anyone desiring to donate Mamiya medium-format camera equipment or SGI computer equipment/software to my
    cause, be sure to contact me!

    So, why the $10 charge? That's a tough question. The short answer is that we (my family and I) need the money and it
    takes time to develop software.

    The long answer: When I wrote the first version, I made it free, as my own meager contribution back into the world
    society that is the Internet.

    The Internet was founded on sharing information and ideas. In fact, arguably some of the best software out there is
    free. Unix is a prime example of this. Perhaps, in my case, this is just an instance of not being very proficient at
    programming, so it takes a lot of time away from other tasks. The bottom line is that while it genuinely pains me to
    charge for software, the pain is inconsequential when compared to that felt when I see my monthly stack of bills. So
    please understand. And please pay =:-)

    Conclusion? He just fancied some cash and decided to try his luck. He lost. Awww... too bad.

  • The corporations have money, and he doesn't. Thus, they can buy the lawyers, judges, etc. that they need, and he can't.

    Last time I checked, blatantly trying to buy a judge was illegal ;-)

    Seriously, I had a conversation with a lawyer friend over dinner the other night, and the talked turned to campaign finance reform.

    He: Whether or not McCain-Feingold is the right solution , something has to be done, because of the public perception that the system is corrupt.
    Me: Is it?
    He: Is it what?
    Me: Is the system corrupt?
    He: Well... yes.

    Your post makes me think, that as corrupt as people think politics is, they think of law as a kind of wild west where the rich get to hire the fastest guns.

    Maybe its true. But if it is, there are still quite a few Shanes left. The lawyers I know still have a strong sense of idealism.

  • by mpe ( 36238 )
    If you create something, and then give it away, why get upset when someone else gives it away too?

    Except that he licenced the software, the company concerned broke the licence. Supposedly the DMCA gives an author the right to control distribution in anyway they see fit.
    If this author cannot do that why should DVD region coding have any standing.
  • Someone managed to convince a judge that because the only way to use a piece of software was to load it into a computer, this was making a new copy, and could only be done by permission of the copyright holder.

    By the same language you'd need a "book reading licence" (And pay double if you looked at the page with both eyes...).

    However, if you paid for the software without signing a licensing agreement, then you simply cannot be bound by a licensing agreement after the fact.

    Unless legislation is passed to ammend all contract law to allow this.
  • Once you've purchased a legally made copy of a copyrighted work, you have the right to resell it, or give it away, or pretty much do anything with it you like, except make more copies (or perform the work in public, for certain works.)

    One of the problems with the DMCA (and the WIPO treaty on which it is based) is that it circumvents this by giving the copyright holder control of distribution including resale.
  • by mpe ( 36238 )
    Of course, the US is one of the few countries where you actually have to file for copyright. In the UK it is yours by right - no filing required.

    The confusion is from the wording that registering copyright, in the US, gains "additional rights". In other words there are some rights which are automatic, just that the "additional rights" tend to be needed in cases of infringement.
  • Copyrights vest automatically upon the creation of a work, true. However, you cannot sue until you have registered the work, though you can register after an infringement to sue for the infringement. Finally, you can't get an award of fees or statutory damages unless you have registered the work.

    The latter is everything in a low-budget case against a monied defendant. Everything.

    The cost of registration is virtually nil once you know what you are doing. Learn what you are doing, and then do it often. It will give you power, and then you won't have to whine when someone beats up on you.

    Yes, it costs a bit to file an action -- but not nearly as much as it costs to defend against a bad claim. This gives you a great hand at the settlement poker table. This makes it possible to win, even against a megacorp.
  • strike "bad claim" -- insert "sound claim"
  • by werdna ( 39029 ) on Monday April 02, 2001 @07:45PM (#320086) Journal
    The DMCA was far less relevant to this matter than the rest of Title 17 -- the Copyright Act itself. The problem here was that this guy just didn't do what he should have done to protect his work. Unless the asset was highly valuable after the fact, he is quite correct: it makes little sense to pursue a copyright action for an unregistered work. The problem wasn't that the laws failed him -- he just didn't take advantage of the laws.

    As an IP attorney and computer lawyer, we \beat up on big companies for individuals and small companies all the time. And, from time to time, vice-versa. We also defend the little guy against an abusive big guy on the same terms. True, a monied litigant has advantages throughout America's courts -- this is hardly an issue unique to the Copyright Act. But the copyright Act is actually unique in that it is, by design, set up to provide powerful relief to underdogs with statutory damages that can include an award of attorney fees.

    The idea is to have a strong case, and to be able to take good advantage of the remedies available to you under law.

    This author did not.

    One of the key mistakes he made, and this was huge, was to fail to register his valuable code, not with the "Patent Office" as he suggested, but rather with the Register of Copyrights at the Library of Congress. It costs so little, and the massive differences it makes in a litigation scenario are huge.

    Although its best to consult with a competent legal counselor the first time, most copyrights can be self-registered at nominal cost. Most of what you need to know can be found at: the Copyright Office web site [].

    Registering a work prior to infringement entitles you to statutory damages, possible statutory punitive remedies and a likely award of attorney fees in a suitable case. What a difference this can make for the defendant when factoring the consequences of an action. The hammer of an award of attorney fees and damages determined by a jury (not necessarily related to the actual damages at all), shakes the concience of a large corporation where it matters -- at the level of the bean counters. Suddenly, it makes no good sense to rattle sabres: it becomes a losing proposition.

    Similarly, a wise defendant can use the Copyright law provisions to her advantage, particularly by exploiting the offer of judgment provisions of the local rules.

    The laws cut both ways, and of course a monied litigant will often have advantages under EVERY LAW ON THE BOOKS. But it is no surprise that the Copyright Act offered this guy little relief -- he had a bad case.
  • Well I travel internationally quite a bit and I gotta say pretty much every place people live the same. Get up, go to work, work all day, come home, eat something, veg out in front of whatever passes for local entertainment. Overall most people are pretty happy in most places.
    Americans are some of the most unhappy people on the planet because they have no community and are basically lonely most of the time (especially as they get older). After hitting middle age most americans limit their circle of friends to a handful and at retirement they are probably living as far away from everybody as they can afford to get.
    You may feel blessed (and good for you!) but overall Americans suffer from the highest rates of chronic disease, mental anguish, violence, fear and paranoia anywhere in the world.

    There is a reason for the lynchings, school shootings, etc and nobody has the guts to look into what the real causes may be. Maybe it's the rate of poisons we feed ourselves, maybe it's the arsenic in the water, maybe it's the pollutants in our air, maybe it's the fact that christianity is diametrically opposed to capitalism which sets up a coginitive dissonance strong enough to stun an ox (would jesus drive a BMW?).

    I don't know where you get the idea that most of the world can't drive their cars or that most of the world would be killed for expressing their opinions but you are dead wrong. Only a minory of the people in this planet live under that degree of opression. People drive their cars all over this planet and most of them don't stop at traffic signals or obey speed limits either. I would recommend getting stuck in traffic in istanbul, or jogjakarta one day and you'll agree all gods children got cars they all drive them like idiots.
  • So which one is right?
  • When asked to justify why you want to donwload copyrighted works from napster you should use the exact same excuse all big corporations use when faced with similar questions. Simply say "because it costs too much to comply with the law".

    When big business wants to pollute they say "it costs too much to clean up our emissions" and get Dubya to back off of the clean air laws.

    When business does nto want to provide a safe environment for their emplyees they say "it costs too much" to actually buy egnomic keyboards or chairs for their emplyees and gets Dubya to turn back OSHA standards.

    When big business does not like an increase in minimum wage they say "it costs too much" to pay people a living wage and get politicians to vote against it.

    Please let you politician know that "it costs too much" to pay for every single song you want to listen to they seem to be in a mood to listen.
  • In this case it looks like the owner of the domain has set up his name server to return for the relevant host.

    DNS can't be updated that quickly, normally. They're doing a nasty redirect from the web server:

    % telnet 80
    Connected to
    Escape character is '^]'.
    GET /Computers/Articles/copyright.shtml HTTP/1.1

    HTTP/1.1 302 Found
    Date: Mon, 02 Apr 2001 21:27:30 GMT
    Server: Apache/1.3.6 (Unix) FrontPage/ ApacheJServ/1.0b3
    Location: pyright.shtml
    Transfer-Encoding: chunked
    Content-Type: text/html

    <TITLE>302 Found</TITLE>
    The document has moved <A HREF=" les/ copyright.shtml">here</A>.<P>


  • by Convergence ( 64135 ) on Monday April 02, 2001 @01:57PM (#320097) Homepage Journal
    Either we callit piracy and theft, or we call it infringement.

    If they can call it piracy and theft, then we should too.

    Though I'd be happier if everyone called it what it is: copyright infringement.

  • Excuse my language, but that's a bunch of shit. When was the last time anyone here audited something before they ran? What it comes down to, unless you have hundreds of hours in your day, you'll have to trust someone: either on the integrity of the binary, or of the source.
  • Their web page now reads: []

    Microsoft OLE DB Provider for ODBC Drivers error '80004005'

    [Microsoft][ODBC SQL Server Driver][SQL Server]Cannot open user default database ''. Using master database instead.

    /includes/, line 4

    Pretty sweet server they've got there.

  • The link is slashdotted, so I couldn't read it, but you are the first person in the thread that has the slightest clue. It's quite amazing that it isn't until post 115 that somebody mentions 'contingency'.

    Generally if a copyright violation is flagrant, then the court will award attourney's fees, but you have to regsister your copyright. In the worst case, the contingency fee is 40% of the judgement or settlement. If you can't find a lawyer to take the case and shelter you from the risk of losing, it is a strong hint that facts and law aren't on your side. Even weak cases often provoke settlement offers.

    The idea that a "small" plaintiff can't sue a company because it costs too much is amazingly ignorant. What a bunch of crap. The truth is that it is incredibly easy to sue for a legitimate cause of action, and it is the defending company that will be paying out of pocket and have exposure to high damages. That's the sort of risk that people who control purse strings abhor. If this is a company with venture capital support, it can even be the kiss of death.

    From the posts above it seems like the copyright violation is pretty obvious. The guy should register his copyright immediately and find a lawyer ask for a nice 6 figure damages claim.
  • So, let's say he registers his copyright today. Do you think the infringement will stop immediately? Most copyright holders, including corporations, don't register until they need to because of some dispute.

    Your argument is "no registration" => "no contingency", which is exactly why my advise is to register immediately. Step 1 in defending your copyright is to register it, he prefered to write an article about how the legal process won't help him. Why should it? He hasn't even followed step 1.
  • Their 800 number is slashdotted. oh well.
  • by po_boy ( 69692 ) on Monday April 02, 2001 @12:00PM (#320103) Homepage
    Great. Now the guy has had his software and his article redistributed without his permission.
  • (This isn't meant to be a troll. I promise!)

    Ok, so what's the big deal? Here we are, whining because somebody doesn't get copyright protection for their work, somebody finds their work distributed in a way not allowed by the license. (Not that this is right.)

    Whatever happened to all of those people who were crying to mommy because Napster was in trouble for wholesale distribution of copyrighted material in violation of the licenses on the albums?

    Apparently, we like to have our cake and eat it too. We want to be able to download copyrighted materials from Napster, yet can't stand it when somebody uses our IP against our license.

    Please, our arguments would be a little bit stronger if we picked one side or the other. I'm not saying Napster should be shut down, I'm not saying the RIAA isn't a bunch of jerks, and I'm not saying it isn't wrong to take someone's code and distribute it against their license agreement. I'm just saying that if we want to claim that information wants to be free, we'd better follow through and apply that belief in all areas, not just where convenient. If we want people to respect our license agreements (like GPL and FreeBSD's), we should make more of an effort to do a little bit of respecting ourselves.

    (I'll get off my soapbox now. Sorry! Rant mode turning off.)

    -- There are three kinds of people in this world: those who can count, and those who can't.
  • Because of course, there is no excuse for any webserver anywhere to be unable to withstand a Slashdotting.


  • I disagree that it is capitol Wrong to do this. It isn't very neighborly, but in the absence of the "owner" licensing otherwise I don't see how you can argue that it is Wrong.

    Is the BSD license "Wrong?"

    Anyway, I don't think it is at all clear that his software was being sold for a profit anyway.

    It seems like it might be Wrong for the author to give his software away, then suddenly say "oh, everyone EXCEPT for Mr. Corporation's customers can use this software for free. Mr. Corporation has to pay me."

    I'm not actually saying that this is true, but I think this argument has more legs than saying, in effect, that the BSD license is morally reprehensible.


    "There is no number '1.'"
  • by pete-classic ( 75983 ) <> on Monday April 02, 2001 @11:40AM (#320114) Homepage Journal
    Okay, he did not give any details on his license, but he calls it "email me ware." So if that companies customers actually use the software and fail to email him they would be in violation.

    I though this sort of distribution was the whole point of shareware.

    I am all for the little guy, but it seems like this guy wants to change the rules in the middle of the game to make a buck.


    "There is no number '1.'"
  • I think in his story he hit on the key point. You must "file" your software in order to have the full protection under the law. If you don't take the steps the laws require you can't expect to benefit under them.

    The problem is not that a large company abused an individual (though they certainly did). The problem is that this individual didn't understand the laws he was trying to take advantage of.

    You don't need to spend thousands on a lawyer for that either. My father (a CS professor) figured it out in 1983 when he sold software. He did a little research and found out he needed to file the software in order to have full protection under the law. No lawyer involved.

    I'm sorry but I think this is making a mountain out of a mole hill.

  • ignore these other comments. you did buy something. you DO have the right of first sale (or first giveaway). only of the physical thing you bought, and without having installed the software on it.

    copyright only affects copies. period.

    and the right to make you agree to eula's comes from copyright law (since you're copying to your hard drive - a flimsy ass reason in the first place).

    the copyright affects the data on the cds. but you DO own the physical copy of the software outright. you can smash the cds, stick them in bags of manure, set fire to them, whatever you want. you did buy something. not much.... just the cds, but the property (versus copyright) laws that apply to purchasing actual physical goods apply here, there is absolutely no copyright issue.

    any of you who don't see this are being rather obtuse and voluntarily ceding rights to software makers that they can't possibly have. over-geekified i think. please spend some time in the real world where 'things' are actually 'bought'.
  • by LordNimon ( 85072 ) on Monday April 02, 2001 @11:55AM (#320121)
    Would this even be an issue for software under the BSD license? My understanding is that the whole point behind the BSD license is that companies can take your code and repackage it any way they want. I don't think the GPL lets companies do that.
    Lord Nimon
  • In this case it looks like the owner of the domain has set up his name server to return for the relevant host.

    That is a pretty novel way of avoiding slashdot effect... just take your domain offline.

  • He sure as hell got some revenge on'em with this since their website's been /.ed all day. I bet they're REAL sorry they fucked with him now!


  • by Pedrito ( 94783 ) on Monday April 02, 2001 @11:41AM (#320130)
    In a book I wrote years ago, I included code for, basically, extracting information about Windows VxDs from the binaries. I got this code from another developer who had placed copyright restrictions on the code. I included those restrictions along with the book and credited him for the code.

    A few years later, Intel released a product for profiling software. In that software, they used the code from my book without my permission, nor the permission of the original author, who clearly stated that the code could not be used in for-profit software.

    Being a small developer, and not having a registered copyright, there was nothing he could do. He certainly couldn't afford to take on the likes of Intel.

    It's sad that companies with such large budgets and such talented programmers, have to resort to theft of code. And companies complain about piracy and intellectual property rights. They're a bunch of hypocrites and theives themselves.

  • Sounds pretty ridiculous doesn't it?

    No, acutally, it sounds like a pretty accurate assessment of the situation. Ideas are not property.

    The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    -- Excerpt from Article 1 Section 8 of the Constution Of the United States of America.

    The above statment is where congress gets its power to make copyright and patent law. Notice, it does not say anything about property. It says that Congress can grant an exclusive right to one's invention for a limited time To promote the progress of science and useful arts. So if a copyright or patent, or law thereabout, hurts the sciences and useful arts more than it helps them, it is unconstutional.

    Copyrights and patents are not about compensation, except compensation as a motivation to create. Ideas are not property, they never have been, and they only will be through bastardization of IP law's original intents.

    Any violation of IP laws is simply a violation of the "Author or Inventor's" limited time exclusive right. It is not stealing, it is simply copyright/patent violation, regardless of if the "Author or Inventor" is the RIAA, or J Random Hacker.

  • by Artagel ( 114272 ) on Monday April 02, 2001 @12:46PM (#320140) Homepage

    The page for the registrar of copyrights is here [].

    I think the fee is about $30, which is pretty cheap for insurance if you are engaged in serious commercial activity that would inspire you to hire a lawyer later.

  • IANAL, but all derivative works of a copyright are protected, correct? So just copyrighting one version ought to give you some protection for all subsequent versions as well, as long as some code remains the same.

    The only "intuitive" interface is the nipple. After that, it's all learned.
  • by Animats ( 122034 ) on Monday April 02, 2001 @12:26PM (#320145) Homepage
    It's only $30 to file a copyright deposit with the Library of Congress. [] And once you do that, the clock starts running on willful infringement and statutory damages. If you register, notify the infringer, and they continue to sell the infringing product, it's willful.

    There are also criminal penalties. From the DOJ cybercrime web site []:

    • There are four essential elements to a charge of felony copyright infringement. In order to obtain a felony conviction under 17 U.S.C. 506(a) and 18 U.S.C. 2319, the government must demonstrate that:
    • 1. A copyright exists, see infra Section III.B.1 at page 48;
    • 2. It was infringed by the defendant by reproduction or distribution of the copyrighted work, see infra Section III.B.2 at page 50;
    • 3. The defendant acted willfully, see infra Section III.B.3 at page 14; and
    • 4. The defendant infringed at least 10 copies of one or more copyrighted works with a total retail value of more than $2,500 within a 180-day period. See infra Section III.B.4 at page 58.

      See 17 U.S.C. 506(a)(2); 18 U.S.C. 2319(a), (c)(1). The maximum punishment for this crime is 3 years imprisonment and $250,000. See infra Section III.D at page 71.

      Another element, if proven, enhances the maximum penalty: That the defendant acted "for purposes of commercial advantage or private financial gain." If it is proven, the statutory maximum prison sentence can rise to 5 years. See 17 U.S.C. 506(a)(1); 18 U.S.C. 2319(a), (b)(1). See also infra Section III.B.5 at page 60 (discussing commercial purposes element). Moreover, a commercial motivation case will usually have better jury appeal than a case without commercial motivation. Indeed, if commercial motivation is not alleged, defendants may be more inclined to raise the affirmative defense of fair use, codified at 17 U.S.C. 107, since fair use defenses are more plausible when defendants do not profit financially by their acts of infringement. For a discussion of "fair use," see infra Section III.C.3 at page 71.

    So talk to the local U.S. Attorney's Office.

  • This quote right here:
    The application is free and is not to be sold
    is what they infringed on. Had they have had the software available for public download, they'd have been fine.
  • by superdan2k ( 135614 ) on Monday April 02, 2001 @12:31PM (#320152) Homepage Journal

    Seems though, that larger companies seem to think they're doing you a huge favor by redistributing your work, so they feel justified in doing so.

    Recently, I recieved an email from a larger font firm (who shall remain nameless), who said that they were planning on including a number of the fonts I've designed on a CDROM that they would be distributing. They further went on to say that if I wanted them removed, I had to email them by this-and-such-a-date... In short, the email said, "Well, we're using your shit unless you tell us we can't." No please, no thank you. Nothing.

    At the time, I wanted more exposure for my site, so I let them go ahead with it, so long as the CD included all my usual files. I'm still pretty irked about their attitude, though...

    Yo soy El Fontosaurus Grande!
  • The corporations have money, and he doesn't. Thus, they can buy the lawyers, judges, etc. that they need, and he can't. They know this, so they (the corps) aren't afraid of him.

    Sad, but true. This is what our legal system is nowadays.

    The AOL-Time Warner-Microsoft-Intel-CBS-ABC-NBC-Fox corporation:
  • That's nice and all, and it may prove date of first publish, but it won't help you whenyou actually come down to awarding damages in court. US laws _require_ you to file a copyright to get the protection.
  • That is one hell of an idea, but, according to the Copyright Basics, Circular 1, , IANAL, but it seems like you can only register 1 item,a dn you still have to print out 50 pages of code.
    • If the work is an unpublished or published computer program, the deposit requirement is one visually perceptible copy in source code of the first 25 and last 25 pages of the program. For a program of fewer than 50 pages, the deposit is a copy of the entire program. For more information on computer program registration, including deposits for revised programs and provisions for trade secrets, request Circular 61, "Copyright Registration for Computer Programs."
    • If the work is in a CD-ROM format, the deposit requirement is one complete copy of the material, that is, the CD-ROM, the operating software, and any manual(s) accompanying it. If registration is sought for the computer program on the CD-ROM, the deposit should also include a printout of the first 25 and last 25 pages of source code for the program.
  • by jargoone ( 166102 ) on Monday April 02, 2001 @11:40AM (#320164)
    DMCA, like other copyright laws, provides no real protection for a small developer.
    Imagine you've put your best efforts into developing software. The law says that you automatically own the copyright on your original works, so when a company starts distributing your work in violation of whatever license you've chosen, you probably expect copyright legislation like the DMCA to protect you. Unless you've had a lawyer involved since the beginning of development, you'd better think again. This raises questions about the viability of open source licenses such as GPL which hinge on a copyright to ensure that software projects aren't hijacked.

    This is the story of a small, naïve developer who didn't file the copyright on his software and ended up being abused by Ariston Technologies, in Huntington Beach, California. My hope is that others can learn from this situation.

    Ariston Technologies clearly violated copyright laws by distributing for profit a proprietary work without knowledge or permission of the copyright holder. Copyright laws such as the DMCA provide for collection of either statutory or actual damages. Current interpretation by the courts precludes collection of statutory damages unless the copyright was actually filed with the Patent Office before the violation. In the case of shareware or open source software, proving damages is exceptionally difficult. However, even in cases where the copyright has been filed, most copyright lawyers do not work on a contingency basis, and so will not bother with a case involving shareware or open source software unless the potential dollar amount is significant. The alternative is for the individual to pay for prosecution out of pocket, which can quickly exceed US$20,000, for an award that may not be even half that. So even in cases where copyright laws have clearly been violated, the net effect is that they are unable to protect the small developer.

    In 1998, I developed a small piece of software, Matt's Hack TV, to fill a particular need. The resulting version 1.0 binary was distributed as "email me ware," which required that users merely email me what they thought of the software. Included in the terms of release was a note that the software was not to be sold. It was not GPLed, but it was free. In 1999, I added functionality and revised the terms to include a $10 shareware fee. It was released as version 2.0.

    In early 2000, I discovered that Ariston Technologies was distributing version 1.0 of the software on a CDROM sold with their iSEE-I USB product. The software was also used as advertising on the packaging material (see images to the right), and was featured at the top of the CDROM once opened. The CDROM was not provided as a public service nor was it available to the general public, even though this violated the usage terms of the first, free version. The last page of their manual included wording that stated that all software was furnished under license and that I (being the manufacturer) was effectively providing support for my stolen software, both of which were totally false.

    When I first contacted Ariston, I saw the possibility of a business deal, with the potential for a wider distribution base. Unfortunately, when confronted about this matter, Mr. Lazarous Bontour, the president of Ariston Technologies, first feigned surprise and later, he significantly downplayed the situation by claiming that distribution was very limited and that the software had only been used for "tech support." Perhaps sensing impending legal problems, Mr. Bontour never seriously discussed forming a business arrangement, so money didn't enter the equation. At the end, his tone changed to insults with claims that the software "wasn't worth" it, and that they were pulling the software from their "latest" CDROM revision, even though the disk info shows the then-current version had been created in January 2000. At this point I knew I was out of my league, so I contacted an attorney to negotiate a settlement.

    Several months were consumed with collecting the evidence, providing it to the attorney, and several rounds of attempted negotiation with Ariston. In the end, Ariston stonewalled the process and refused to negotiate. At this point, the only option was federal court, a costly proposition, with the daunting task of proving damages, since statutory damages are available only to software for which a copyright was actually filed before the infringement.

    Pursuing the case further is apparently futile as of this writing. My only consolations are that others might benefit from my story and the hope that Ariston will either eventually get what's coming to them or change their unprincipled business practices.

    Reference Materials

    [ snipped quote from GPL to avoid lame lameness filter ]

  • Homer Simpson quotes that apply here:
    That'll teach you to share!
    Trying is the first step to failure. So never try, Lisa.

    I hope you all remember this the next time you want to make something the public may want to buy...
  • What registration gives you is extra protections, such as the ability to collect statuatory damages up to $100,000 if the infringement is judged to be willful.

    This is the crux of the matter - GPL software by it's freely distributable nature would make proving damages almost impossible when we have Judges like Kaplan who don't grasp free software. So in the real world, GPL is only meaningful if the copyright is registered.

    My question: On what grounds does the judge decide what the damages are? In the example given by the article, $100,000 would be excessive given the limited distribution and low price of the CD, yet if the judge tries to decide by estimating monetary damages, GPL is screwed again. Is the value of the damages set by the amount that would create a suitable slap on the wrist? What factors decide the damages when registered copyright is breached?
  • His legal advice is that the software needed to be registered _before_ the infringment took place, therefore he has no recourse - contingency doesn't help because without a registered copyright, he won't be able to demonstrate damages even a fraction of the legal fees. It doesn't matter that he would be likely to win, the award won't be enough to interest any contingency lawyers :(
  • A search engine doesn't hype a program then charge you $$$ for the link to it. They're not really as analogous as you seem to think.
  • by -Harlequin- ( 169395 ) on Tuesday April 03, 2001 @12:24AM (#320171)
    Whatever happened to all of those people who were crying to mommy because Napster was in trouble for wholesale distribution of copyrighted material in violation of the licenses on the albums?

    Since when did napster distribute copies of anything? Napster was convicted of contributory infringement because it profited off the illegal actions of others, not because it was itself making illegal copies of anything.

    That said, I think you've missed the point a bit - this is not /. trying to have it's cake and eat it too, this is /. complaining that big business does have its cake and eat it too - copyright can be used against the little guy (Napster) but it can't be used for the little guy. It seems to me that Slashdot wants the same law to apply equally to all, which isn't hypocritical at all.

    On the topic, the impression I get is that most people on /. agree that Napster is doing wrong, but are simply far more concerned with the much greater wrongs of the RIAA, and are also concerned by the shortcomings of currant IP law. Things are a lot grayer than the simplistic "we like stealing but don't like being stolen from" picture you paint :-)
  • by Lostman ( 172654 ) on Monday April 02, 2001 @11:28AM (#320173)
    decide to take it to the source.

    Because their SQL server is a page in the story of "The Little Server that Died," this info is provided below from Their Contact Page [].

    Why not give them at the corporate office a call? When you call you might hear a nasal kinda "assistant" -- I figure that if she writes down all the complaints and passes even 1/5 of them on, then notice would filter its way to the top some time.

    Come on -- takes a moment of your time.

    Contact US
    Corporate Office:

    Local: 714-846-7676

    Fax: 714-846-3546

    Web Address

    E-mail Sales

  • Dude, this isn't SPAM. Spam is when one guy sends out a million emails.

    When a million pissed-off citizens send emails to one company, it simply isn't Spam. It is a call to attention. It is a show of force, ideally.

    So, I am going to join in the throng. I think I'll just write 'you guys suck!'

    Yeah, that'll make me feel better...

    here goes {clikcliktypetype}


    Now, I wonder if they'll contact me.

    Oh, guy, excuse me, but what does "firm (but polite) disapproval" mean, anyway... If I sit here and give a Real Mean Church Lady look at their webpage, do you think it will get a better reaction from them?

    I prefer the million emails myself... okay, okay, 500 emails in reality prolly. But I hope at least they know we are Still Out There, and we are Still Watching!
  • I can go to comp USA and buy 500 copies of MS Windows and shove one into every 500lb bag of manure I sell.

    Please don't do that. The manure industry has a bad enough reputation as it is.

  • If I publish a book that's a compilation of articles, it requires but one copyright registration. So where would we be if a service was set up where anything under appropriate license (say, GNU) could be uploaded to a site from which it would be (in compressed form) added to a DVD compilation-of-the-month (or so) that would be duly registered with the Feds under an "all rights revert to the authors of the individual packages" arrangement? After all, if I copyright a book or magazine - which will in some instances contain such an assignment to the original authors - and you steal a single article from it, you're guilty. And this means it wouldn't take 100s of folks submitting registration to the feds (and the fees that involves) but only one small organization with the ability to collect the stuff and burn the DVD (it would also I think be necessary to actually offer the DVD for sale in order to secure the copyright - so that it's actually published - but hey, that could be a useful thing to have or subscribe to for some).
  • by Wordsmith ( 183749 ) on Monday April 02, 2001 @11:24AM (#320181) Homepage
    A better title might have been "The DCMA vs. Large Businesses" or "The DCMA sucks for Small Developers."

    In this instance, someone tried to use the DCMA against a large corporate entity and found it didn't provide him with the resources he needed to protect his work.

    The important thing to note here is that the DCMA works best for those with lots of cash, whichever side of the fence they're on.
  • I really hate it when a site gets /.ed, but in this case it sounds like they deserve it. Of course, only the DB was /.ed, the site still remains.
  • Don't forget that one half of the copyright bargain is disclosure, in return for giving the library of Congress a copy of the work to archive the copyright owner gets enhanced legal redress. No disclosure, well sort the mess out yourself.

    You're confusing patent protection with copyright. Disclosure is part of the patent bargain but it is not part of the copyright bargain. There is no reason for it to be.

    In the case of copyright, the item to be copyrighted should be so unique that the only way one might realistically infringe is to actually copy from the source. In this case the onus would reasonably fall upon the copier to license the material.

    In the case of patent protection, the idea to be patented could easily be conceived by a great many persons independently. So disclosure is the only hope that one would have that any new idea one thinks of and wants to use isn't already patented. (Disclosure is also supposed to benefit society, theoretically.) (And yes, I know that "ideas" aren't patentable, only implementations. We all know that's a load of crap in practice, however.)

    Copyrights are about stopping people from using other people's works. Patents are about stopping everyone from using an idea, no matter who originated it, irrespective of whether any plagiarism might have been involved.


  • by CharmQuark ( 200261 ) on Monday April 02, 2001 @01:00PM (#320188)
    The DMCA has little to do with this problem. The problem is one of money and documentation. The problem is not new. Engineers and inventors have been defending and losing their designs for a very long time. I believe several years ago Ciarcia's Circuit Cellar [] had an issue on this very topic.

    To be specific, most companies and patent lawyers have years of experience in circumventing copyrights. The large companies routinely use two attacks to destroy the copyright. First, they throw money at it and hope the developer is too poor to fight. Second, they assume that small developers do not keep good documentation.

    There is not much that can be done about the money. Lawyers must be hired; expert witnesses paid; bonds must be negotiated. In a more cynical world, congressmen and judges must be bought.

    There are things that developers can do for documentation. For instance, in olden times developers snail mailed themselves copies of their designs. The postmark dates a design until the seal is broken. On a more sophisticated level, laboratory notebooks can be kept that have approval space and perforated copies. (Of course, I am not a lawyer, so I say this only as an example of why we would expect the DMCA to be ineffective and how I have seen people deal with it in the past.) Look at it this way. If I published a book remarkably similar to the "Confederacy of Dunces" [] a few years before Toole's mother allegedly 'found' the manuscript, who would own the copyright?

  • In a book I wrote years ago, I included code for, basically, extracting information about Windows VxDs from the binaries. I got this code from another developer who had placed copyright restrictions on the code. I included those restrictions along with the book and credited him for the code.


    Being a small developer, and not having a registered copyright, there was nothing he could do. He certainly couldn't afford to take on the likes of Intel.

    Hmmm.... The book was copyrighted, no? Also as a general proctice I do not release works into the mainstream without at the very least, mailing a copy of the source code to myself to prove a timeline or registering it with the copyright office.

  • Yes, legally in the US, you just need to put it to a CD (floppies last about 4-5 years, CDs 20 years, mag tape 100 years) and mail it to yourself postmarked by registered mail.

    But if you want full protection, by being registered in library searches, you need to send it to your national archives.

    I used to produce various software, RPGs, and magazines in Canada - I would always print out the source code and register it in both the National Library (can't recall the name) in Canada and the US Library of Congress.

    But I only did that for full version releases. The bug fix versions I would just save to disk. And keep the disk.

    And all my code had a copyright declaration on the splash screen (or boot), DOS -? call, and embedded in the main screen Help About.

    Even my freeware was copyrighted and registered.

  • You are propagating a dangerous myth which can
    only harm those who attempt to protect themselves
    in this ridiculous fashion. Using "mail it to
    yourself" as a copyright protection strategy has
    major pitfalls. REGISTER YOUR COPYRIGHT.

    If you'd actually read my post, you'd see I said you really should register your copyright. And I even pointed out that the smartest thing to do was to register it both in Canada and in the USA, just as UK should register both in the UK and the USA. Because you have more rights.

    But if you're doing freeware or shareware or GPL, it's not always cost-effective to pay out up to $100 in local currency to register in both countries each .xx release, just the .00 releases or major .x releases.

    Legally, your post on /. is copyrighted, even if not registered. The protection is stronger by the inclusion of a

    Copyright (c) 2001 The Big Fuzzy Bunny

    statement on your post. And it's even stronger if you print it and send it to register it at the Library of Congress.

    But my point was what one might choose to do in practice:

    sliding scale is
    1. stuff you must keep copyright - register at US Library of Congress and your national registry
    2. stuff you probably need copyright - register at your national registry
    3. stuff you aren't too concerned with (bug fix code, minor maintenance) - save to CD or dead tree and mail registered letter to self
    4. stuff you could care less about - include copyright statement on (splash screen, help about, startup sequence, in code as comment)

    Your mileage may vary ...

  • by grammar fascist ( 239789 ) on Monday April 02, 2001 @11:42AM (#320200) Homepage
    (Note that the FSF is careful to copyright the code it releases under the GPL.)

    What he really means is that the FSF is careful to register copyrighted code. Any copyrightable material is copyrighted by YOU as soon as YOU "fix" it on a "medium."

    What registration gives you is extra protections, such as the ability to collect statuatory damages up to $100,000 if the infringement is judged to be willful. (If you don't register, you can only collect actual damages, which are very difficult to assess.) You can may also collect attorney's fees.

    Hope this clears that up. We really need a copyright FAQ on Slashdot.
  • by Anthony Boyd ( 242971 ) on Monday April 02, 2001 @12:56PM (#320201) Homepage
    Now, the small-time developer can be very much a victim, but this doesn't look like a case of that, to me. It sounds like an honest mistake by a small-time company that got blown WAAAY out of proportion by a greedy developer.

    According to his license, for-profit distribution of his free program was prohibited. Essentially, it's the "I'm not making money so you can't use it to make money either" license. Yet the company did exactly what his license prohibited. So I think you have it backwards: it does look like the developer is the victim, and it looks like it is the small-time company who is being dishonest and greedy.

    I feel for the guy, and think he should sue them into the ground on principle alone.

  • by Bonker ( 243350 ) on Monday April 02, 2001 @11:26AM (#320202)
    Sadly, enforcement comprises a good percentage of the law. If this wasn't the case, we wouldn't be so concerned with the 'precidents' that certain court cases set.

    The simple fact of the matter is that unless small and GPL developers start suing and winning court cases, Large developers (Microsoft, as well as this other guy) can do anything they want to with GPL code without fear of reprisal.
  • The corporations have money, and he doesn't. Thus, they can buy the lawyers, judges, etc. that they need, and he can't. They know this, so they (the corps) aren't afraid of him.

    Sad, but true. This is what our legal system is nowadays

    While I don't doubt that a great many judges have been bought off, I don't think this really is the rule. I actually rspect most judges, even those who I don't agree with, because I feel they are trying to do the right thing.

    As far as money and lawyers go, however, it's a totally different story. Large teams of lawyers and their bankrolling corporation don't have to buy judges. All they have to do is buy time. And, so the paper war begins. Most little guys can't afford to pay a lawyer $x an hour to deal with the avalanche of paperwork that can be filed by a team of 6 lawyers. And even if the little guy could afford to pay his lawyer for it, the lone lawyer wouldn't stand a chance in hell of keeping up with it. So, he'd have to hire more lawyers. Eventually, it's a much better idea either to drop the suit, or settle out-of-court for an "undisclosed amount".

    And, that, my friends, is really how the (civil) law works.

  • "Matt's Hack TV, Version 1.0 Portions of application ©1998 Matt Warner Portions ©1992 by Apple Computer, Inc. 'Email-me' ware: drop me a short note to let me know if you find this application useful. The application is free and is not to be sold. There are no guarantees nor warranties regarding this software."

    Maybe Ariston should have sent him an e-mail for each one that they gave away...

    Yes, what they did was slimy, but that's why so many authors include in their licenses prohibitions against bundling their software with commercial products.

    P.S. All your free software are belong to us.

  • You're confusing patent protection with copyright. Disclosure is part of the patent bargain but it is not part of the copyright bargain. There is no reason for it to be.

    No I am not. The original English copyright act on which the US one is based established four copyright libraries to which publishers had to send a copy of each work. The US followed the same model and that is why the library of Congress is so large.

    Copyright covers only the embodiment of an idea, not the idea itself, but the bargain element is still there. There is a social interest in maintaining a repository of all published knowledge.

    When the scientologists got kicked out of court in the Netherlands in their case against Karin Spaink it was because they had failed to register the work. The court decided that sending the first and last pages alone did not meet the requirements of Dutch law.

  • by Zeinfeld ( 263942 ) on Monday April 02, 2001 @03:03PM (#320218) Homepage
    I can't see where the law has failed here. The idea of copyright registration is in part to simplify copyright disputes making it easier for the courts to make the right rulling.

    This guy failed to register the copyright and is now complaining that he can't afford to take the case to court - tough.

    If the guy had registered the copyright the risk of statutory damages would have forced the infringer to negotiate a settlement.

    Don't forget that one half of the copyright bargain is disclosure, in return for giving the library of Congress a copy of the work to archive the copyright owner gets enhanced legal redress. No disclosure, well sort the mess out yourself.

  • If you make something,and then give it away. Well then you gave it away. IF someone sees a way that they can make money from it, well then how is that any of your concern?

    Intellectual property is often not 'given' to anybody. In most cases, the author hangs onto ownership of the work, and licenses or grants rights to others.

    Instead of giving his work away, this guy was giving away the rights to use it. His license specifically stated what sorts of uses it could be put to, and Ariston's use was a violation of that license. Corporations such as Ariston rely on this protection to control the uses of their product; there's no reason they should get protection and this guy shouldn't, just because he's willing to charge his end users less (a postcard, or $10 for example.)

  • I called the numbers listed by others (disconnected) tried to look at their website (down) and then looked at the Google cache for the site. I found a few Massachusetts telephone numbers for Ariston and gave them a try.

    The 'customer service number actually worked, but was reassigned to another company. The guy on the other end of the line told me that I "had the right number, but that company went out of business".

The moon is a planet just like the Earth, only it is even deader.