Todays ethical discussion: Would d/l-ing popoulus be Pirating? - by Keeper Hellzon
Para?noid on 30/3/2001 at 13:20
Yet I still do not understand how playing a game such as Populous which is no longer manufactured, or for release, and therefore, not making any kind of profit should be illegal. What the holy fuck is so damaging to someone's intellectual property if someone is playing the game they made 10 years ago? This is an absurd logic.
buglunch on 30/3/2001 at 16:05
If you don't pay for games not in public domain, it's illegal.If you sell burned copies it's unethical and illegal.
Rug Burn Junky on 30/3/2001 at 18:30
Vigil, now that you're done spouting off - would you care for an ACTUAL legal opinion?
You're wrong. The arguments that it is perfectly legal are absolutely correct.
It's not criminal for a home user to copy warez, of any sort. You will not, and can not get thrown in prison for it. It is also unlikely that civil liability would extend w/r/t warez in general. With abandonware however, you are 100% immune to civil liability if you make copies for your own personal use.
Copyright extends mainly to the distribution of a protected work. It IS illegal to make them available to others on a large scale.
However, when making a copy for personal use, in order for the copyright holder to sue for infringement on that noncommercial use, he must prove "that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work."
SONY CORP. OF AMERICA v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417
In this case, the simple fact that the software has lapsed into abandonware is <u>conclusive proof</u> that there is no potential market. The intention of the copyright holder to no longer market the software means there is no market to be damaged.
Case closed.
Can the rights hold enjoin someone from selling his work for profit? Certainly. But if he no longer plans to market it himself, he has absolutely no standing to contest private "home-use".
Obviously, this is American law, and there are slight variations on it worldwide. But with the Berne convention on copyright law, most enforcement in this area is universal.
As for whether it's ethical, I question Ishy's assertion that the law is merely a tool to oppress, but he's right that ethics and the law are not always in lockstep with each other. As GBM said, there are many things that are ethical and illegal, and vice versa.
Here, they seem to conform to me, but you can make up your own mind. To quote the great Mr. Rogers (of children's show "Mr. Rogers' Neighborhood" fame) in the Sony Betamax case: "My whole approach in broadcasting has always been 'You are an important person just the way you are. You can make healthy decisions.'"
Wise words indeed.
Ishy on 30/3/2001 at 19:18
I said the law is a tool of control, not oppression. I'm sure you can appreciate that there is usually a significant difference.
And I was wearing my Down With The Elitist Oligarchy! shirt, so you're lucky I didn't highlight the role that Metternich's foreign policy had in establishing the dominion of the power elite among European nobility, resulting in the inevitable rise of the secret alien world masters. Mark my words - keep your tinfoil helmets close at hand, for the end days are upon us! This foolish search for Populous will bring down the fury of Zog the Indefatiguable Psychic Man-Chicken upon us all! Damn you, Keeper Hellzon.. you knew too much, and now we will all pay the price.
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"My computer- it, uh.." - Keanu Reeves
Rug Burn Junky on 30/3/2001 at 19:31
*Puts on his "I joined the elitist oligarchy and all I got was this lousy t-shirt" t-shirt and matching "What? Me in league with the secret alien world masters?" hat*
With all due apologies, your distinction is well made and acknowledged.<font size=1 color=f7f7f7>
[This message has been edited by Rug Burn Junky (edited March 30, 2001).]
Bruny on 30/3/2001 at 19:35
Keeper, the question you asked is not one of morals or ethics. It is one of fact. Yes. If you download populous that is pirating and you are a pirate. Happy now?
MrDuck on 30/3/2001 at 20:38
Gentlemen, gentlemen, please, if you'll just pay attention for a bit, the question in regards here is not wheter d/l Popolous or any other "abandonware" game is ethical or unethical...no my friends, the real question is, does it taste good with cheese?.
I thank you for your time, and I must now skidaddle.
MrDuck puts on his
"I Like Cheese" T-Shirt and a matching "And Cracker's Too" hat and marches on to a paradeWee wee....
PS: Almost to my 1000th post
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[This message has been edited by MrDuck (edited March 30, 2001).]
Vigil on 31/3/2001 at 01:51
Well, thankyou for your ACTUAL legal opinion, Rugburn. I wasn't aware of that. And I would say neither are rather a lot of people; I was not for the record 'spouting off', merely parroting the legal stance professed by most of the anti-piracy authorities. While I'm sure they are as aware of the ins and outs of the law as you are, they apparently do not like to make it known that recieving illegal copies of a piece of software is legally defensible.
It does strike me as being a rather odd case of affairs, however; given that it is illegal to distribute and to knowingly recieve stolen goods, and given that the real problem of piracy is not only wide distribution, but also wide market.
Rug Burn Junky on 31/3/2001 at 05:23
They actually do make it known. In particular, David Boies has taken great pains in the Napster case to make that argument. In fact quite a bit of his case rests on the home use principle. He very often makes analogies to the tape trading arena. The information is out there there if you pay attention, and you don't need access to a legal database to find it.
This is not some arcane facet of the law that I've dug up. Congress codified it into copyright law in 1971 w/r/t home taping, and analogies have been made, with sporadic success, in various other legal arenas ever since.
And you're right, with a valid, currently marketed piece of software, there is a slight probability that one may be deemed as "inducing an infringement" by providing an opportunity for someone else to distribute the software (since as you noted, the wide market facilitates the distribution). This has yet to be tested, before a court, but many courts have dealt with nonbinding commentary in other opinions, and have been split on the issue. As I said earlier, civil liability is <u>unlikely</u> to extend, though it's not 100% inconceivable that it would. But in either case you wouldn't, as you implied, be getting away with something that is per se illegal on the grounds that it's unlikely to be enforced, rather, it's something which may or may not be actionable in the first place, since a valid argument can be made in the defense of owning pirated software. (Though, in all likelihood, I find it hard to believe that any judge would be silly enough to entertain the argument that mere possession of intellectual property is wrong. Opens up way too many cans of worms.)
The question however, is abandonware, and noid was on the money. It's off the market, and likely to remain so, so there's no harm to the rights holder. Therefor the noncommercial use of the material is unquestioned and the rights holder has no standing to sue.
I will however apologize for my earlier tone - I simply took offense at how forcefully you asserted your erroneous claim. Still, there was no need for me to be quite so insulting.
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