[theolein]

Originally posted by dogzilla:
<STRONG>Well, if you feel Ambrosia's expiring licenses are bad, check this out:
http://www.macintouch.com/autoillustrator.html

Note: AutoIllustrator is a * very* cool vector illustration program cdreated with RealBasic. I've played with a few of the betas and enjoyed it. But these licensing terms border on the insane. I'm not sure they're leagally valid, but it makes you wonder what's happening nowadays with developers.</STRONG>

I think these people are taking this far too far. And what is worse, they are not alone. Another so called art programme for the Mac is one called Nato. It's a plug-in for the Max Midi system and generate all sorts of wierd video effects. It has an MS like online registration system with the minor plus of actually allowing you to deregister if you're moving computers or reformatting, thereby allowing you to use your old password again when you reinstall. The system tracks deregistrations, making sure that only those who have deregistered can use their old paswords. However this info is in the incredibly bad user manual in this $500 programme and it doesn't always work and then you're screwed, literally, as the woman who writes that thing is about as sane as Van Gogh and about as easy to get on with. What I dislike is the arrogance of these people. Artists are not above the law. But their behaviour generally backfires on them and their stuff doesn't exactly sell well.

Moki-- The person who gave the idea of generating a key based on credit card and personal information may have hit the nail on the head. If you have a system that generates a key based on their private financial information and you warn them as to this fact, would it not be a far better deterrant than your present scheme? People would know that passing their key on to serial surfers etc. would be a bad idea.

[Matt Slot]

Originally posted by theolein:
<STRONG>The person who gave the idea of generating a key based on credit card and personal information may have hit the nail on the head. If you have a system that generates a key based on their private financial information and you warn them as to this fact, would it not be a far better deterrant than your present scheme? People would know that passing their key on to serial surfers etc. would be a bad idea.</STRONG>

Here's the thing with this... most people *really* don't want their personal information associated with the license code. That's an even bigger restriction that contacting us once a year, it's a downright security hole. If you think it's easy to reverse engineer our serial generator (trust me, it ain't), then how do you feel about decoding your credit card number?

Our secure webserver would be useless once we email license codes back to the user, since a hacker could sniff for that data instead. Also, users would need to treat the code just like other highly personal data -- in case their system was hacked, their laptop was lost, etc. Finally, many Snapz purchasers are corporate, and businesses are not about to allow that sort of security hole. I'm sure you can come up with other legitimate uses that would expose your license code.

Almost all of the suggestions in this thread have either been implemented already, or shot down as too restrictive. As for the SN generator, I'd wager good money that it's a hoax. That said, if anyone finds such software, please drop us an email.

As for the AutoIllustrator license terms -- those guys are on crack.

[Millennium]

Here's the thing with this... most people *really* don't want their personal information associated with the license code. That's an even bigger restriction that contacting us once a year, it's a downright security hole. If you think it's easy to reverse engineer our serial generator (trust me, it ain't), then how do you feel about decoding your credit card number?

This would be a Bad Thing. However, it's also fairly easy to make this very difficult, if not impossible to do. Don't base the number directly on the credit card number. Instead, run the number through a non-reversible algorithm which still generates a unique result for the size, and base the serial on that. An example of such an algorithm is the MD5 checksum routine. This routine is often used for authentication, both in terms of "password" storage (where the password is not stored, but rather its MD5 checksum), and many other types of authentication. So you have a tested, tried, and true method to keep the credit card number out of reverse-engineer's hands.

And like I said in my previous proposal, the credit card number is not actually stored. It's just there for a consistency check on the number (which also has other numbers it's based off of, such as the user's name.

Our secure webserver would be useless once we email license codes back to the user, since a hacker could sniff for that data instead.

Again, that's why the non-reversible algorithms. That way, you don't have to send that data back. It's probably a safe assumption that the person who registered the program has access to the credit card used (indeed, it's virtually certain, since they had to give that number to you as part of the buying process). So while it migght be a good idea to send some information as to how to type the number in, you don't need to send the actual number back.

Also, users would need to treat the code just like other highly personal data -- in case their system was hacked, their laptop was lost, etc.

Not with the non-reversible algorithms, they wouldn't.

Like I said before, the credit card number and other personal information are only used for a consistency check on the actual registration code. The code is useless on its own, and the personal information is not stored.

The idea is to make people not want to distribute your registration code. This accomplishes this task, by making the code useless unless you distribute personal information along with it (making the code easy to trace, should anyone be stupid enough to actually do it). Further, the personal information is of the sort which can be validated; the name, credit card number, expiration date, and billing address are verified as part of the billing process. Add in e-mail addresses, if you like.

This does, of course, lead to the final issue of reverse-engineering. If the algorithm is reverse-engineered, someone could just make up a bunch of fake information, grab a number, and off you go. This is why the third step: verification. Preferably via a Net connection, but some other means (a snail-mail exchange, perhaps?) should also be available, for people whop don't have Net connections.

It's a simple, one-time check. Try to connect when the number is entered, using a random high-numbered port (or better yet, a port that's in a range used by other popular programs, so that firewalling off outgoing connections on those ports isn't feasible). If you can't connect, note that you couldn't do it and inform the user, but give them the benefit of the doubt for now and consider it registered. Try again in an hour, or the next time the program launches. Keep trying until you succeed. You only need to do it once. Check the information and the code; if they match with a paid customer, you're good to go. Eventually, even a pirate will slip up.

Oh, and each time a number is used, send an auto-generated e-mail off to the person to which it's registered, notifying them. A legit user won't get very many of these, even if they format once a week, and it won't be a big issue. But it would get very annoying for a pirate, when hundreds of people use the code. You They can't use a "throwaway" address for this, since they got the code on it in the first place. Of course, when you get hundreds of registrations on a number in a given month, that should raise a red flag. And of coruse, if e-mails don't get through, you can always use the other personal information to get in touch with the person. And if a number is found to be pirated, it can be marked as invalid without having to update the program.

People can slip through this, of course. But the idea is to make it a huge pain to do so, such that any sane person would just give up. To run around this, a person would have to:

• Use a stolen credit card. A real stolen card, at that, if you use that three-digit security code you find on the back (most places on the Net don't use this, so sniffed ones are useless).
• The personal information on the owner of the card. Perhaps doable via a stolen wallet, but this involves committing another crime, and most pirates won't do that.
• Use a valid e-mail address, which will have to be checked periodically (if only to empty the server of its hundreds of e-mails, so that it won't trigger your using other means to check the person).
• Not distribute the number, in order to keep the number of registrations on it low.
• Religiously deny the program the ability to connect, so that it can't verify the number.

...and so on, and so forth. Does this seem worth it to you? It won't, to most. And those few who would actually go through all this, wouldn't have been stopped by your current system anyway.

Finally, many Snapz purchasers are corporate, and businesses are not about to allow that sort of security hole. I'm sure you can come up with other legitimate uses that would expose your license code.

Agreed. That's why a scheme like this has to fulfill two requirements:

• Non-reversibility. It should not be possible to get the personal information out of the code. This is resolved, in the case of my suggestion, by running the information through one-way algorithms, particularly MD5, which is well-known, well-tested, and very reliable.
• The code must be useless without the personal information to accompany it. This is the key to making it unattractive to serial distributors; who would want to give out the code, if they'd also have to give out personal info to make it work?

As for the AutoIllustrator license terms -- those guys are on crack.

On this, at least, we agree. I'm honestly glad to see there's still some common ground.

[MacGorilla]

Are we still on this?? get over it!!

[SunSeeker]

Why bother licensing these programs at all.
You could reformat and reinstall all of your software, including all those 30 day demos, every 30 days.

If you know what you are doing you can have a complete system with apps, reinstalled within 15 minutes.
Thats probably less time than typing in all of those serial numbers. And your clock will tell the right time too.

Dont bother asking me how though, I am not trying to advocate piracy just playing devils advocate

Make your choice. Live with the intrusions or inconveniences of software protection (such as payment ) or live with the inconveniences of piracy (like Jail).

For me the biggest inconvenience of all, is kagi not recognising my email address.

[cheerios]

Originally posted by juanvaldes:
<STRONG>

Moki,
Will this email or phone # be easily accessible from the app? like the about box? Because I don't want to have to hunt down it on your site or have to remember it or anything, that is just a little too much. Also does the app tell you about this when you first register?</STRONG>

That's just about the only issue I can think of, too... that finding a current phone number or URL could be difficult, but if it's inherent in the program itself, then there should be no problem. I understand why the original poster at Ars was annoyed, I would be, too, but this is NOT the end of the world. Moki, keep looking for better solutions, 'cuz they HAVE to exist, but as things stand, it looks like you've got a decent setup. I liked the suggestion that was put forth at hte beginning of the ars thread, about a code you could imput at a website, to e-mail you the code.

Also, the whole idea of e-mailing the key... doesn't that run into the same issues of users not having internet connections, or e-mail? I know, sounds archaic to us, but people don't have connections, or e-mail. Ok, just answered my own question... the phone number, you dork! It's 3 AM, teh brain JUST stopped functioning, so with that, I'm hitting submit, and going to bed.

[Adam Betts]

.

[Brazuca]

Originally posted by SunSeeker:
<STRONG>Why bother licensing these programs at all.
You could reformat and reinstall all of your software, including all those 30 day demos, every 30 days.

If you know what you are doing you can have a complete system with apps, reinstalled within 15 minutes.
Thats probably less time than typing in all of those serial numbers. And your clock will tell the right time too.

Dont bother asking me how though, I am not trying to advocate piracy just playing devils advocate

Make your choice. Live with the intrusions or inconveniences of software protection (such as payment ) or live with the inconveniences of piracy (like Jail).

For me the biggest inconvenience of all, is kagi not recognising my email address.</STRONG>

I agree with part of this. I've been trying to understand the true cost of casual piracy on a company's bottom line. I have an intuitive feeling (that some theoretical work backs up, mentioned above) that piracy does have some positive externalities and that it does not do as much harm as most may think.

Maybe there are too many resources being devoted to fighting this, maybe not.

[dtc]

FWIW, i recall that that's what Apple claims to do with the QuickTime registration codes.

Originally posted by theolein:
<STRONG>
Moki-- The person who gave the idea of generating a key based on credit card and personal information may have hit the nail on the head. If you have a system that generates a key based on their private financial information and you warn them as to this fact, would it not be a far better deterrant than your present scheme? People would know that passing their key on to serial surfers etc. would be a bad idea.</STRONG>

[SunSeeker]

FWIW, i recall that that's what Apple claims to do with the QuickTime registration codes.

Thats exactly how it is with quicktime, you have to get every capital letter and every space in the original user information and serial number to get it accepted.

It can be a minor pain if you don't have it written down correctly, but it's much better than the email verification system.
I for one would prefer it.

btw. It is linked to your name and organisation details, not credit card details.

[ 01-07-2002: Message edited by: SunSeeker ]

[krove]

Originally posted by SunSeeker:
<STRONG>

Thats exactly how it is with quicktime, you have to get every capital letter and every space in the original user information and serial number to get it accepted.

It can be a minor pain if you don't have it written down correctly, but it's much better than the email verification system.
I for one would prefer it.

btw. It is linked to your name and organisation details, not credit card details.

[ 01-07-2002: Message edited by: SunSeeker ]</STRONG>

And guess what - you can still copy it from one machine to another! That certainly is a deterrance (NOT!) I think Ambrosia's previous serial numbering/security system was the same - using the name and number of copies linked to the SN. Damn - sheer geniuses - you've managed to devise the very SN/security system that Ambrosia is looking to and already has replaced!



I for one prefer Ambrosia's new system - it'll ensure they stay in business to produce more way-cool apps! (And none of that "I'm taking my business elsewhere" crap because simply, there is no one else out there who does as good a job!)

[theolein]

Originally posted by Matt Slot:
<STRONG>

Here's the thing with this... most people *really* don't want their personal information associated with the license code. That's an even bigger restriction that contacting us once a year, it's a downright security hole. If you think it's easy to reverse engineer our serial generator (trust me, it ain't), then how do you feel about decoding your credit card number?

Our secure webserver would be useless once we email license codes back to the user, since a hacker could sniff for that data instead. Also, users would need to treat the code just like other highly personal data -- in case their system was hacked, their laptop was lost, etc. Finally, many Snapz purchasers are corporate, and businesses are not about to allow that sort of security hole. I'm sure you can come up with other legitimate uses that would expose your license code.

Almost all of the suggestions in this thread have either been implemented already, or shot down as too restrictive. As for the SN generator, I'd wager good money that it's a hoax. That said, if anyone finds such software, please drop us an email.

As for the AutoIllustrator license terms -- those guys are on crack.</STRONG>

Hi Matt, nice to hear from you people at Ambrosia. Without developers like you I think the Mac would have died a long time ago. Apple has forgotten what it is like to actually talk to their customers.

Anyway-- I had after this, an email exchange with Adrian Ward about his licence and the guy really is nuts. He claimed at first that his licence is similar to a licence from Macromedia or Adobe. I pointed out a couple of differences and then he claimed that his licence is "an art form". After I'ld finished laughing I pointed out that a licence is a legally binding document. He didn't write back.

But all of this is, sadly just pissing in the wind, I'm leaving the Mac platform for a while until I get some real money, and will be getting a Dell Laptop. I can't wait any longer for Apple to improve Java performance.

[P]

I agree that making the serial number verfiy against the credit card number is one of the best suggestions I've heard yet, and it shouldn't be too hard to implement either: if you're already generating against the name, generating against an MD5 of the credit card number should be the same thing. I still don't have a problem with the current scheme, but I think this woudl be more effective.

[moki]

I have some good news on the license code renewal front. We have been listening to all of your comments, and our crack programmer, Matt Slot, has been furtively brewing up a nice addition to our registration system.

To recap, you only ever need to enter a license code again if you reformat your hard drive, or wish to install the software on a new computer. License codes expire if they are not entered within 30 days. As it is now, if you enter a license code that has expired, it tells you to contact us for a new code. This doesn't take more than 24 hours in most cases (usually far less), but some people want more immediate gratification.

What we're we're working on is this: If you enter a code that is expired, the Register application will tell you that your code is expired, and ask you if you'd like to contact Ambrosia for a new one. If you click "Get new code..." it will open up a TCP connection to our server, validate your old code, and immediately issue you a new one.

This makes it a bit less painless for both Ambrosia and our customers to obtain new license codes if they get a new computer or reformat their hard drives. While we have found that people generally do not keep their license codes, for those who do, this will get them a new one quickly and seamlessly.

We're considering keeping the text that it sent to our server as cleartext, to avoid people worrying about any sensitive data being sent to us. The only information sent is your licensee name, your license code, and the number of copies you licensed. We then validate this on our end, and reissue you a code.

Of course, we would have the ability to block codes if they get pirated, prevent people from trying to flood or hack the server, pass off bogus codes as real ones, etc.

In any event, I realize this doesn't address the core argument some people have brought forth, but it does make things more convenient for our customers, which is something are quite concerned about.

[cpt kangarooski]

That's very nice, Andrew. Now then... let's get back to addressing the core argument, shall we?

[Arakageeta256]

Wow. How did this thread get so big?? I've read the first 1 1/2 pages and only have one comment to make:

Really, it's about time Ambrosia came up with something a little better. It's been my impression that their serial scheme is pretty weak (or well documented*)-- at least with its earlier software (up to EVO I think). Heck, there is a program that can create any personalized serial for many Ambrosia programs on the fly. Also, the process was/is almost identical for all the older games (perhaps why they are all cracked). Try renaming some preferences/license of one registered Ambrosia game to work with another-- it doesn't work exactly, but one can notice a certain level of similarity: the unregistered program shows the name of the user associated with the registered program (but it is not actually registered).

But I am left wondering: Surfer Serials support comments for each serial. What is there stopping the authors of SS from including the comment "set computer date to xx/xx/xx and then use code"??? I can't see using SS as being classified as "advanced cracking"-- rather, almost as casual as it gets.

Anyhow, I think what Ambrosia is doing is great-- of course they have a right to earn money off of every user making full use of their software! And heck, it's not like they're asking us to use dongles (DIE AUTODESSYS!!!!! hehe).

*I recall once coming across a txt file describing how to crack any (at the time of its publish) Ambrosia program. Honestly couldn't tell you where I saw though. It's been a while.

[fprefect]

Originally posted by Arakageeta256:
<STRONG>Heck, there is a program that can create any personalized serial for many Ambrosia programs on the fly.</STRONG>

The new system is much more secure than the old one.

<STRONG>What is there stopping the authors of SS from including the comment "set computer date to xx/xx/xx and then use code"???</STRONG>

This does not work in the current Register Application.

[cpt kangarooski]

Anyhow, I think what Ambrosia is doing is great-- of course they have a right to earn money off of every user making full use of their software!

Actually, you couldn't be more wrong.

The only reason Ambrosia was given a copyright in the first place, was so that the work would eventually enter the public domain. Should it enter it in its present form, Ambrosia would have ripped off the entire citizenry, because it deliberately crippled the software so that it cannot also promote the progress of the arts (e.g. by simply being a useful program, or by serving as the foundation of a newer version written by someone else) in any meaningful way.

Ambrosia is freeloading off of us and our progeny, and frankly, I don't care for it. That it is commonplace in the present day certainly only compounds the problem; it doesn't justify it.

[Arakageeta256]

The point of copyright is to bring products into public domain?

Funny... I always saw copyright as an incentive for people to innovate and create new products-- have a guarantee that they would be able to market their product without fear of being ripped off. Capitalism is all about people taking risks, right? I was of the belief that copyright helps induce people to take that risk. "To the victor go the spoils-- to the creator go the profits!", I always said. Huh.

You learn something new everyday I guess.

[Brazuca]

Originally posted by Arakageeta256:
<STRONG>The point of copyright is to bring products into public domain?

Funny... I always saw copyright as an incentive for people to innovate and create new products-- have a guarantee that they would be able to market their product without fear of being ripped off. Capitalism is all about people taking risks, right? I was of the belief that copyright helps induce people to take that risk. "To the victor go the spoils-- to the creator go the profits!", I always said. Huh.

You learn something new everyday I guess.</STRONG>

I think the Captn's point is that the important characteristic of a copyright is _not_ that they last 7(?) years, but that the _expire_ after 7 years. In other words, if the purpose was for a producer to make a profit, it would last indefinetelly. The fact that it expires is a middle ground between the financial incentive to create, and the aim of the copyright, which is to allow everyone to take advantage of new discoveries for the public good.

[cpt kangarooski]

7 years would be amazing. Right now it's more on the order of at least 70, and often times more, years. Naturally, one wonders how it is that we do benefit from this at all, anymore. Back in the days when the span was 14 years, or even when it was 28 years, things were better.

Anyway, don't take my word for it. Any number of courts, particularly the U.S. Supreme Court are of the same opinion.

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
Sony v. Universal, 464 U.S. 417, 429 (1984)

The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.
Fox v. Doyle, 286 US 123, 127 (1932)

The primary objective of copyright is not to reward the labor of authors, but 'to promote the Progress of Science and useful Arts.'
Feist v. Rural, 499 U.S. 340, 349 (1991)

The Supreme Court has recognized that "the monopoly created by copyright thus rewards the individual author in order to benefit the public."
SunTrust v. Houghton Mifflin, 268 F.3d 1257, 1262 (11th Cir., 2001) (quoting Harper & Row v. Nation, 471 U.S. 539, 546)

The second goal of the Copyright Clause is to ensure that works enter the public domain after an author's rights, exclusive, but limited, have expired. ... The public is protected in two ways: the grant of a copyright encourages authors to create new works, ... and the limitation ensures that the works will eventually enter the public domain, which protects the public's right of access and use.
SunTrust v. Houghton Mifflin, 268 F.3d 1257, 1262 (11th Cir., 2001)

Hopefully Andrew will note that last phrase "the public's right of access and use" which he seems to be opposed to, claiming a copyright on a work that CANNOT be accessed and used by the public without the permission of Ambrosia even after their term of copyright has expired.

But my point stands, I think. Limited exclusive rights granted to an author for a limited time, when he meets certain criteria set by the government, are ONLY an inducement to achieve the true goal of placing works into the public domain. Where the public does not benefit by full and unrestricted use, modification, copying and dissemination of a work, the author is taking wrongly, and the public will never benefit from it.

This is why I say that Ambrosia is more deserving of the 'thief' appelation here than any mere pirate (though I am not endorsing actual piracy during the term of copyright, nor claiming that copyrighted works are property, which they are not). They're not living up to their end of the bargain, but still demand that the public sacrifice their inherent right to go wild with the works created by Ambrosia. No one deserves copyrights -- they earn them, and the only group capable of dispensing them is the populace, via their government.

[ 01-12-2002: Message edited by: cpt kangarooski ]

[fprefect]

I am reluctant to wade into this, as the thread has drifted from expiring license codes into a diatribe on copyright, but I thought I'd give a quick response and hopefully we can get on with life.

Originally posted by cpt kangarooski:
<STRONG>This is why I say that Ambrosia is more deserving of the 'thief' appelation here than any mere pirate (though I am not endorsing actual piracy during the term of copyright, nor claiming that copyrighted works are property, which they are not). They're not living up to their end of the bargain, but still demand that the public sacrifice their inherent right to go wild with the works created by Ambrosia.</STRONG>

The license code scheme is designed to protect us and our software while we still hold the copyright. I don't know why you say that we aren't living up to our "end of the bargain" since the software won't enter the public domain for another 95 years, and there is no reason to assume that we will prevent it at that time. We have the ability to strip the registration requirements from any application with a compiler switch.

Don't confuse "copy protection" with "intent to defraud the public". Just because some other companies or industries are ruthless in protecting their interests, don't lump us in with them. I think Ambrosia has a pretty good track record (most of our original games are fully functional with or without a code), and that we've demonstrated that we are willing to address problems as they arise (see Andrew's post above). We're not a big megaconglomerate, we're just a couple of guys trying to write cool software.

<STRONG>No one deserves copyrights -- they earn them, and the only group capable of dispensing them is the populace, via their government.</STRONG>

On this, you are simply wrong. Copyright isn't earned or bestowed, it's automatic for any and all original works -- even without the circle-C symbol. As you illustrated above, governments and conventions only restrict copyright to balance innovation and progress against the promotion of Sciences and the Arts.

[ 01-13-2002: Message edited by: fprefect ]

[cpt kangarooski]

I'm objecting to Ambrosia's scheme both because I think that it is hostile to the interests of users qua users, but ALSO because I believe it is a blow against the spirit and letter of copyright. I don't see that the discussion is wandering off-point in the least.

Anyway, Ambrosia's ability to sue an infringer protects their copyright far better, in a far more balanced manner than a mere mechanism ever could.

This is particularly true as you cannot guarantee that the work will ever properly enter the public domain. Ambrosia may dissolve beforehand, it may choose not to live up to its obligations, it may be incapable of doing so having lost the essential information, etc. This has happened before (c.f. the loss of many early films which were intentionally destroyed by the owners, or lost because of the fragility of the remaining film stock) and it'll happen again.

Additionally, the public is fully entitled to make limited use and have limited access to copyrighted works WHILE within their term, and Ambrosia is denying this as well. Someone who mistakenly believes in a work being property might belabor under the fallacy that every unauthorized use or access is infringement, but this is of course untrue.

Where no public benefit will be fully realized -- that is, where the public never achieves full access and use (inclusive of copying, et al) -- the copyright was in error. To a certain extent, misfortune is tolerable. A purely accidental fire that destroyed fragile films is certainly bad for everyone. Deliberately attempting to cheat the public however, as Ambrosia appears to be doing here, is hardly misfortune, but is intstead malicious.

Ambrosia does have a decent track record. However, firstly, it is a mistake to consider it good merely because so many other copyright holders are worse. No one would consider a burglar good despite being surrounded by murderers who make his crimes seem paltry by comparison. Both groups are worthy of condemnation. Secondly, the mere lack of a registration code is still insufficient to make an Ambrosia program laudable in terms of the copyright bargain. It is exceptionally difficult to claim that the public will recover their access and use of those works simply because there's no code required.

Actual reasonably useful (e.g. not obfuscated) source code would be necessary as well as the work itself, and it is there where Ambrosia has actually done well. N.B. that it still has points deducted for persisting in 'licensing' software instead of outright sales. I have yet to hear EULA-type software licensing justified by ANYONE who does it, and have repeatedly asked Andrew to do so here, to no avail. I do ask again, however.

It is absolutely essential to note that I am NOT calling for Ambrosia to release all of their software as 'open source' e.g. under the GPL. I'd like them to do so, but it is not necessary for them to properly live up to their moral and legal obligations under copyright. As long as the source is publicly available, even if it is restricted by copyright, preferably in reputable archives, such as the Library of Congress, with sufficient documentation for people to make legitimate uses of it during the term (e.g. reviewing it, excerpting for educational purposes, parodying, etc.) I'd be happy, and I think it could fairly be said that Ambrosia was acting properly. They would absolutely not be compelled to lose any of their protections in the source code -- but these protections would be LEGAL, which is apparently not an avenue that Ambrosia seems interested in pursuing, much to my bafflement.

Frankly, the argument that Ambrosia deserves laxity due to their small size makes no sense to me. Every copyright holder has the same rights (modified only as per the form of their work) and obligations. I am just as critical of AOL-Time-Warner as I am of Ambrosia, and for the same reasons. The only difference I'm aware of here is that Ambrosia is simply more approachable, which is irrelevant in terms of the law. Not that this has had any effect here, of course.

On this, you are simply wrong. Copyright isn't earned or bestowed, it's automatic for any and all original works -- even without the circle-C symbol. As you illustrated above, governments and conventions only restrict copyright to balance innovation and progress against the promotion of Sciences and the Arts.

I admit that I am not a lawyer, and that I have no special knowledge of copyright law, cannot dispense legal advice, and am not licensed.

But I don't think I'm wrong here. Allow me to appeal to authority again.

After the work was published, the author was entitled to federal statutory copyright protection if she had complied with certain federal requirements (i.e. publication with notice). ... The system illustrates that the author's ownership is in the copyright, and not in the work itself, for if the author had an ownership interest in the work itself, she would not lose that right if she published the book without complying with federal statutory copyright requirements. Compliance with the copyright law results in the guarantee of copyright to the author for a limited time, but the author never owns the work itself.

... In a society oriented toward property ownership, it is not surprising to find many that erroneously equate the work with the copyright in the work and conclude that if one owns the copyright, they must also own the work. However, the fallacy of that understanding is exposed by the simple fact that the work continues to exist after the term of copyright associated with the work has expired.
SunTrust v. Houghton Mifflin, 268 F.3d 1257, 1262-63 (11th Cir., 2001)
(emphasis mine)

"The copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious."
Pierre Leval, Towards a Fair Use Standard, 105 Harv. L. Rev. 1105, 1124 (1990).

You're making a mistake that is not at all uncommon, but which is nevertheless wrong. Copyright is not a natural right, inherent as a consequence of authorship of a work. I won't comment on the rather strange and primative customs of foreign countries, but the US has ALWAYS demanded that copyright be bestowed upon authors ONLY when they have complied with federal regulations permitting it, AND where such federal regulations exist.

The Constitution simply empowers Congress to pass copyright legislation within certain limits imposed by the Copyright Clause and the First Amendment. It does not require it, and the natural state is one in which copyright does not exist. Only positive federal legislation can permit grants of copyright by the government to authors.

AT PRESENT copyrights are bestowed automatically for an exceptionally wide range of works, even without a requirement of publication. (note that the clearly dubious legality of such law has not been settled by the Supreme Court) But they are bestowed nevertheless, and then only for the range of works which Congress permits. For example, Congress could tomorrow strike grants of copyright to computer software tomorrow, without changing a single other element of the law, and that entire class of works would never have copyright bestowed upon it. Copyright is an artificial, positive (in the sense of 'non-natural) right, and must be earned. Even if the bar is set to unheard-of low levels, it still must be earned.

Therefore, your last sentence is utterly wrong. Governments do not limit copyright; they CREATE IT, and their creation is by nature limited from birth. By way of analogy, if you write the 'Hello, World' program, did you create an OS, which you then limited to only print a small string? Certainly not -- you created a program which can only print the string, and was never capable of more.

Furthermore, they can restrict copyrights in any arbitrary way imaginable. In the original copyright act of 1789, IIRC, only books and maps were protected, if the author was an American, and then only for 14 years, and then only within certain other legislative and judicial restrictions. If copyright were 'automatic' without having to be bestowed by an agent external to the author as you maintain, this law would be severely lacking in protection for, say, music, which was not then copyrightable by Congressional fiat. Congress did not have to pass law saying 'Music isn't copyrightable,' either, they never made it copyrightable, thus leaving it in its natural home, the public domain.

Copyright is not restricted only to balance the various interests. Instead it is ONLY TO BE PERMITTED where it actually does promote progress. Copyright which fulfills any other purpose under the sun without promoting progress is absolutely contrary to the intent of copyright, and is unconstitutional.

You have to remember here, it's positive legislation -- not natural. Not here.

[ 01-13-2002: Message edited by: cpt kangarooski ]

[moki]

Originally posted by Arakageeta256:
<STRONG>Really, it's about time Ambrosia came up with something a little better. It's been my impression that their serial scheme is pretty weak (or well documented*)-- at least with its earlier software (up to EVO I think). Heck, there is a program that can create any personalized serial for many Ambrosia programs on the fly. Also, the process was/is almost identical for all the older games (perhaps why they are all cracked). </STRONG>

This is ancient history -- the system we're using now is much, much more difficult to crack -- as you will notice, there are no serial number generators for Pillars of Garendall, Snapz Pro X, or Deimos Rising. There are a few genuine serial numbers floating around in nefarious circles, but thanks to the code expiration scheme, they are now useless (and no, you can't set your date back).

[moki]

Originally posted by cpt kangarooski:
<STRONG>I admit that I am not a lawyer, and that I have no special knowledge of copyright law, cannot dispense legal advice, and am not licensed.</STRONG>

Then why do you insist on playing one on the Internet?

I've presented our case; I've made it clear that our intention all along has to been to make this have as little impact on our paying customers as possible. The one person in this thread who actually licensed one of our products noted, as we have, that he didn't even keep his license code, so he'd be contacting us when he reformatted his drive or bought a new computer anyway.

If you want to get engaged in a long, drawn out theoretical discussion, that's fine -- but the reality is that the impact on our customer is minimal, and additionally, we are working on ways (such as the automated server I mentioned) to make it even less so.

[moki]

Originally posted by cpt kangarooski:
<STRONG>Ambrosia is freeloading off of us and our progeny, and frankly, I don't care for it. That it is commonplace in the present day certainly only compounds the problem; it doesn't justify it.</STRONG>

You know, I have ignored most of your diatribes, because it just isn't worth getting into an argument with you -- but this is just absolutely ridiculous.

Tone the rhetoric and personal attacks down; you are being both insulting and facetious.

[cpt kangarooski]

Andrew--
I'm aware that you've been ignoring me. I don't really see why -- I think that my questions to you are justified. So far, IIRC, they've been 1) What are the full terms of the license under which you distribute Snapz?; 2) Why did Ambrosia decide to license their software as opposed to simply selling copies of it? There might be others littered around, but these are the big two.

You cannot possibly allege difficulty in posting the answer, or a link to where the answer may be found, for the first. And you're the only possible person AFAIK who can answer the second. Please, if you don't want to answer I'd at least appreciate an reply to that effect that is somehow related to the substance of the questions. Neither one seems as though it would harm Ambrosia particularly. I'm not asking for the secrets of the code scheme or anything else that in any way seems as though it might be a trade secret, making your reluctance rather curious.

As for the lawyer comment, it is because I am interested in the law and I find it relevant here. I couldn't give advice upon which I would want someone to rely, but your counter argument is silly. It is akin to saying that if I am not a politician, I should not be interested in politics, nor vote. Or that if I am not a doctor that I shouldn't take an asprin. Or that if I am not a programmer that I shouldn't claim that certain software is buggy. It behooves everyone to have a certain understanding of the law so that they may both act in accordance with it, or work to change it if they disagree with it.

If you want to refute my arguement, refute it. Don't attack me -- refute it. Don't sidestep it with claims that you will not harm customers -- refute the actual arguement. I have been trying to support my position at least. I apologize if you find it insulting, but at least I am not pulling things out of mid-air.

[moki]

Originally posted by cpt kangarooski:
<STRONG>Andrew--
I'm aware that you've been ignoring me. I don't really see why -- I think that my questions to you are justified. </STRONG>

I have been ignoring you because arguing with you is a waste of time; I have better things to do.

Seriously, I am not going to be dragged into this argument with you -- if you want to keep posting here, go for it -- but don't be shocked when we don't engage you in the discussion.

[ 01-13-2002: Message edited by: moki ]

[cpt kangarooski]

So don't argue that. Post the answers to two entirely factual questions and let the rest of us debate your actions and motives between ourselves unless you again feel you want to join in.

Neither of my direct questions to you actually demand that you defend them. It would be nice, but I can live without your direct participation in debate. All I want is information.

[iBorg]

GOOD GOD, IS THIS "DEBATE" STILL GOING ON???

I've been a long-time paid user of SnapzPro (and now SnapzProX), and have nothing but accolades for the product, and the company's customer service. Andrew has been *more* than patient, courteous and professional, in a forum in which accusations and diatribe have risen to levels I've *never* seen in any forum in which a company spokesman has continued to participate.

If you like the product, buy it and use it. If you don't, then DON'T buy it! Purchase an alternative product, or, if you think you can do better, program an alternative and compete with Ambrosia yourself! I see the same very few complainers posting again, and again, and again, ad nauseum, saying the same, exact things, over, and over, and over.........

The issue will *never* be resolved for you, so please, stop wasting electrons, and "deal with it!"



iBorg

[el_humpo]

Sorry to all the people who are complaining that this thread is too long - I think this topic is quite interesting.

I am a freelance software developer, and have contributed to several GPL'd software projects. The software I get paid for is owned by large corporations - they pay me to develop it, and they control all the rights. So I don't really have much experience in preventing piracy. However, I am very concerned about individual liberties.

I don't think that the concern regarding the demise of Ambrosia is valid. Ambrosia could easily (and might, if they want to placate you guys ) put a clause in their license that says if they go under, they will release unrestricted versions of their software. According to fprefect, this is pretty easy to do, so I don't see a problem here. This scheme might fail if a giant meteor hit Ambrosia HQ and wiped them all out at once; but then I think we'd have more things to worry about than our precious copies of Snapz Pro.

I also don't share the concerns about copyright issues. This is computer software we're talking about here - if anyone has a computer capable of running MacOS X 10.1 in 95 years, I'd be surprised...or else the emulator author has wayyy too much time on his/her hands. Again, this could be resolved with a promise that unrestricted versions would be released when Ambrosia is no more. In the meantime (while the copyright is theirs), they are simply defending their rights.

Finally (this is a little off topic), I don't think this paraphrase from the AutoIllustrator license:

"by using this program, you let us use your machine for anything we want, but you have to take the responsibility."

is out of line. Basically, this is what you do with any piece of closed-source software. You have to take the developer's word about what the software does. iTunes might use up so much CPU time because the author wanted to be #1 in the SETI@home rankings, OS X could record every keystroke and send it to Jobs' personal computer for his own amusement, or your shiny new copy of Windows XP could open up your whole PC to any bored teenager on the Internet. You DO have to take responsibility for what is on your computer, whether you like it or not. If you are downloading shareware from Versiontracker, and it turns out to be a trojan horse that wipes out your hard drive, tough. Even if you only buy software from big, reputable companies, you're still in the same bind - good luck suing MS, Dell, or anybody else the next time Windows crashes and deletes your valuable data. This trust of software developers is implicit and unavoidable when using closed-source software.

[cpt kangarooski]

el humpo--
I have to say that you have a very odd set of priorities there. Your last paragraph seems to imply that you don't trust closed source developers, because you have no way of knowing what it is that they are actually doing. I sympathize with that, and you'll note that I have called for Ambrosia (and others) to archive their source so that it is preserved independently of them, and is publicly viewable, although NOT generally usable.

But to then turn around and trust an entirely different set of people, people who you likely have never and will never meet, to fulfill their duty, seems very odd. More so, given the extreme lengths that copyright holders NOW who have works due to enter the public domain have gone to, so as to continue to monopolize virtually all the benefits possible.

Besides, if you find that you will not benefit from Snapz entering the public domain in ~95 years, this only goes to prove that the term length is far too long. The entire intent of the grant to Ambrosia -- or anyone else -- is that the public will receive the optimal benefit. To accomplish this, the system strives to find a balance between two axes. The first is the freedom of the work; the less encumbered by copyright a work is, the greater the benefit to the public. The second is the number of works available; the more diverse the population of works is, the greater the benefit to the public.

The optimal point is the one where the public benefits the most by trading off certain degrees of freedom in works (in limited ways) to encourage the production of more works. As conclusively shown above, authors are played like instruments. Their desires are irrelevant, save where they can be harnessed to accomplish the purposes of the public at large.

If you're not going to receive any benefit from the work after the term expires, it's pretty clearly too long. Certainly it's extremely difficult to argue that it is at that optimal point. This is where a lot of the arguments for shorter copyright terms originate; in both seeking to maximize the public benefit and also a related and rather noble goal of attempting to preserve works, rather than allow them to be lost. The people that make ROM dumps of old arcade games fit into this area rather nicely.

(And of course, it should always be remembered that authors benefit as members of the public -- if authorial benefit were valued on its own merits, I'd imagine that Atari would have grounds to sue Ambrosia for reimplementing Asteroids as Maelstrom. That copyright is not extended to game-rules has worked towards the public good. Indeed, oft times minimizing copyright does.)

[kamprath]

Originally posted by cpt kangarooski:
<STRONG>No, it is not stealing. It is copyright infringement. (and depending on who is involved, possibly breach of contract) These are two distinct issues, pursued under different laws, legal theories, and in different courts. Even at a very conceptual level, there is a significant difference between stealing and copyright infringement. They're NOT the same thing; this is a common misconception, but that commonality doesn't make it true by a longshot. And the end results have nothing to do with it; copyright infringement of totally free software would still be actionable, even though there was no monetary impact.

</STRONG>

Um . . . copyright infringement is a specific type of stealing. Plagerism is a specific type of stealing. Copying someone else's homework without their permissions is a specific type of stealing. While the monetary impact of each can be debated and compared, the ethical impact is the same: you are stealing someone else's intellectual property.

<STRONG>

Certainly this is one of the stronger wellsprings of moral opposition to this. I doubt that you can possibly claim, Andrew, that it would have been a good thing for our society if, for example, Socrates' "Apology" had been protected by such a scheme. If it had been, maybe no one would have ever been able to learn from it. Certainly not if it were an effective scheme. Works last a LOT longer than the author intends, and no one really cares about the author's desires. Archaeologists and linguists derive great benefit from poring over inventory lists from Crete written in Linear B. The sonnets of Shakespeare were never intended to become public. Nevertheless, our culture would be poorer if we respected the wishes of authors to that extent; we've never done so before, and we certainly should not do so now.

</STRONG>

Stupid example. This is why: it should be up to the author what soceity's right's to the author's intellectual property should be. If the author says, "This bit of intellectual property *I* created is in public domain," great! But if the author says, "This bit of intellectual property *I* create will be available to you under these conditionsa...", THAT IS THE AUTHOR'S RIGHT! Period. American soceity has implemented a balances in the form of "fair use" and a time period after which everything goes into public domain, so no matter what Socrates would have said, if he were an American, after 50 years soceity would have gain access to his intellectual property.

<STRONG>

*Is it piracy -- outside of 17 USC 1201 -- to trade serial numbers? Are serial numbers themselves protected by copyright, or unable to be copied within some exception or defense? Piracy typically involves the transfer of actual software, but that isn't likely to happen here, as Ambrosia distributes the software on its own. Worth looking into, in my copious free time, even if presently moot.
[ 12-19-2001: Message edited by: cpt kangarooski ]</STRONG>

Yes, if the license for use says it is. If you don't agree with the software's license, don't use it. If you download software and install it, even if you used a hacked serial number, you are bound by the software's license. If the license says you must obtain the serial number legally from the software's publisher, no amount of whining about "But what prevents me from ..." will change the fact you have violated the license.

[cpt kangarooski]

I know that I have a reputation for being long-winded. And I know that this subject is not easily accessible, or even interesting to many people here.

BUT, in order to properly address the latest comments, I'm afraid that things are going to get rough. Please bear with me, it all really does make some sense in the end, I hope.

Um . . . copyright infringement is a specific type of stealing. Plagerism is a specific type of stealing. Copying someone else's homework without their permissions is a specific type of stealing. While the monetary impact of each can be debated and compared, the ethical impact is the same: you are stealing someone else's intellectual property.

No, I don't think so. Fundementally I think that you are basing your opinion here on the concept that copyrighted works are property. However, they are not. A copyright itself is property, but a copyright itself exists independently of the copyrighted work (as is clearly evidenced by the fact that copyrights expire, and must be granted to an author by the government, at the government's discretion).

After the work was published, the author was entitled to federal statutory copyright protection if she had complied with certain federal requirements (i.e. publication with notice). ... The system illustrates that the author's ownership is in the copyright, and not in the work itself, for if the author had an ownership interest in the work itself, she would not lose that right if she published the book without complying with federal statutory copyright requirements. Compliance with the copyright law results in the guarantee of copyright to the author for a limited time, but the author never owns the work itself.

... In a society oriented toward property ownership, it is not surprising to find many that erroneously equate the work with the copyright in the work and conclude that if one owns the copyright, they must also own the work. However, the fallacy of that understanding is exposed by the simple fact that the work continues to exist after the term of copyright associated with the work has expired.
SunTrust v. Houghton Mifflin, 268 F.3d 1257, 1262-63 (11th Cir., 2001)

In the case where a person steals, they deprive another of the stolen property. Deprivation is the heart and soul of theft. This cannot possibly be said to be the case in the realm of copyright. If Alice, an author, holds a copyright to her book, B's piratical publication of her book does not make it impossible for Alice to simultaneously publish legitimately. At most, it infringes on the exclusivity contained within the copyright.

Property rights, are of course, artificial too, and similarly utilitarian. The concept of a natural or moral right to property has been dead and buried for centuries, I'm afraid. The chief difference between the two schemes is simply that copyright has a more clearly defined policy goal: to maximize the benefit to the public.

Incidentally, copying someone else's homework is not necessarily copyright infringement (e.g. basic mathematics is surely insufficiently creative to qualify) nor could it be said to be more classical theft of property. At worst it is a violation of a school's code of conduct, but this is far more akin to principles of contract between the two parties -- the school and the copying student -- than an act that is in fact illegal.

Proceeding on to your next argument, you said:

Stupid example. This is why: it should be up to the author what soceity's right's to the author's intellectual property should be. If the author says, "This bit of intellectual property *I* created is in public domain," great! But if the author says, "This bit of intellectual property *I* create will be available to you under these conditionsa...", THAT IS THE AUTHOR'S RIGHT! Period. American soceity has implemented a balances in the form of "fair use" and a time period after which everything goes into public domain, so no matter what Socrates would have said, if he were an American, after 50 years soceity would have gain access to his intellectual property.

Again, let us always bear in mind that any scheme of property -- including copyright -- is grounded in utilitarianism. Indeed, the American copyright regime is unique and well-known for being utilitarian. Too bad that other nations haven't learned from our success or the beauty of the fundemental precepts of copyright here. (copyright, being artificial, is also not universal -- there's no reason for any nation to adopt a copyright law, if it does so at all, unless it suits its own needs)

Now then -- we have two different parties. An author and a reader. Both want to maximize their own happiness. An author maximizes his hapiness by controlling the fate of his book with an iron fist; he wants to be paid absolutely as much as possible for it. A reader maximizes his happiness with two factors. First, he wishes to make free and unencumbered use of the book. Second, he wishes to have an endless supply of different and diverse books.

If, say, the author were the king of the world, he could impose his scheme. However, if he did so, it would cause the first hapiness factor of the reader -- free use -- to become zero. And because we cannot entirely escape the shackles of our limits as human beings, even in this example, it would also fail to result in the maximum number of different books, because authors frequently recycle elements from one work in creating another work. (e.g. Shakespeare's plays were all new versions of plays and stories written by earlier authors; Many Disney movies are reinterpretations of preexisting fairy tales) Because the happiness of the reader is so low, he does not desire to see such a scheme become reality.

Likewise, if the reader were the king of the world (and until the first modern copyright schemes were introduced circa 1700, he ACTUALLY WAS) he would impose his scheme instead. However, if he did so, it would casue the happiness factor of the author -- recompensation -- to become zero. Because of this, the number of books would be lessened, because fewer authors would be willing to write them if their happiness would not be increased. (although it is essential to note that all world culture for the vast majority of human history and pre-history has been inspired by alternative forms of happiness, e.g. creating art for art's sake) This would actually backfire on the reader. Although his first happiness factor -- free use -- is maximized, his second happiness factor is minimized.

The relationship between the grand sum of three happiness factors -- the author's, and the two of the reader -- is where we derive copyright from. Although it may seem contrary to common sense, by failing to fully attempt to realize one's own maximum happiness at the expense of other parties (what is also referred to as internalizing externalities) one's own happiness, AND the happiness of opposing parties, may be mututally increased to an optimum point. This optimum point does not make any party as happy as they could possibly be, but it does make them as happy as they can all get together.

Here, we achieve maximal mutual happiness by the author having some fraction of his maximum possible happiness, meaning that he has some, but not total, control over his work. Furthermore, we achieve it by the reader retaining some, but not total, free use over the author's work. Because there is an incentive to the author, a certain number of works are created, which maximizes the happiness of the reader, with regards to his second happiness factor. (book population)


Now then, what is absolutely essential, what a DAMN lot of people fail to realize, is how this mutual happiness is achieved! Readers who are still with me here, and who have played the 'Life' computer simulation are probably working it out already. In short, the balance is achieved by the parties working independently, at cross purposes, until they arrive at it.

Again, remember -- property rights are wholly artificial in nature. I cannot stress this enough. A property right only exists where it can be defended either a) through force, or b) through respect for it. If, for example, you suddenly declared that your property rights extended outwards from some piece of property you had rights to on Earth, out into space, to the borders of the universe, if there are any, you would be attempting to create a new property right.

However, if no one respected this right, and if you could not compel such respect with force of arms, this self-created right is moot. Likewise, if you actually DID declare yourself 'King of the World' and claimed to own all of the planet, the lack of any respect given to you would yield a paucity of actual property rights.

How then, does one gain respect for a property right, besides force? Mutual agreement. Watch how it unfolds:

Originally, there was no copyright, nor even any notion of copyright, whatsoever. There was a primative notion of what we now call a common law copyright, but this is nothing more than a theoretical right to a work that exists before anyone has seen it. If you painted a beautiful painting in secret, and then destroyed it, you effectively would've had the exclusive right to copy it, but only because no one else knew it existed. A common law copyright is utterly destroyed once the work is known to outsiders, who could then proceed to copy it at will. (n.b. that the common law copyright is no longer used in the US, for some reason)

Anyway, so back from the dawn of time through the 18th century, there was no concept of what we would now call 'copyright.' If an author wrote a book, anyone who came in contact with the book had the natural right and ability to copy it. Copying works is a simple exercise of free speech. It is easy -- at least it is no harder than the creation of the original (which is necessarily duplicatable) and was commonly exercised. For example, the famed Library of Alexandria forced any ship or caravan to enter the city to deposit its scrolls with the library scriptorium, so that the Library could benefit by having its own true copy of the work. (and in at least one famous case, the Library decided to only give back the copy, though they lost a king's ransom in doing so)

Comparatively recently, authors convinced people -- through their governments -- that people AND authors could mutually realize greater benefits if each accepted sub-self-optimal positions. However, consider which of the two groups, authors or readers, could have caused such an arrangement to actually materialize. The answer is clearly readers. Readers control the terms of the agreement. (and in fact, this is pretty typical in any generation of utilitarian rights)

After all, given that no copyright then existed, authors could not claim that they would cease to produce works. They were already producing fewer works than readers would prefer, and were chiefly motivated by other forms of happiness. (e.g. commissions for the authorship w/o royalties, desire to write, etc.) Readers willingly sacrificed their historical position as 'kings of the world,' and the maximized first factor of reader happiness, for a promise of future performance by authors that would more greatly satisfy readers.

However, since readers could arbitrarily set the terms of the agreement -- any terms at all being an improvement for authors, and thus clearly would be immediately accepted by them -- they constructed it to favor themselves. Readers, so long as they are satisfied that they are benefiting more from the maintenance of a copyright regime, are the only way in which one could exist at all. It is also very important to note that since the optimal point of the copyright bargain is NOT one in which either side is perfectly happy, it is fully expected and intended that a certain amount of use, access, copying, modification and dissemination of a work will occur, whether the copyright holder likes it or not. Authors are required to simply suck it up, when their work is, to a limited extent, pirated, or used/copied without authorization. Attempts to completely eradicate it will fail, as they would be hostile to readers, who control the powers authors enjoy. The entire system is inherently structured in just that way. (and this is even leaving aside the fact that piracy and the like can yield other indirect benefits to the author)

There's a ridiculous amount of text here, since your statement, to which I am still responding. But with this background established, let me put it in again so that my more direct comments will more easily be placed in context.

Stupid example. This is why: it should be up to the author what soceity's right's to the author's intellectual property should be. If the author says, "This bit of intellectual property *I* created is in public domain," great! But if the author says, "This bit of intellectual property *I* create will be available to you under these conditionsa...", THAT IS THE AUTHOR'S RIGHT! Period. American soceity has implemented a balances in the form of "fair use" and a time period after which everything goes into public domain, so no matter what Socrates would have said, if he were an American, after 50 years soceity would have gain access to his intellectual property.

As I've attempted to show above, the answer is NO. Socrates CANNOT impose conditions on the use of his creative works, unless people are willing to abide by them and to grant him any power to enforce it. He does not impose -- he requests. And readers are never, and will never, be obligated to grant him that request.

Imagine that Socrates followed the example of the Bobbs-Merrill publishing company. He places a statement in his book essentially reading: "This book cannot be resold for a price less than one dollar." By your statement above, you would find that to be enforcable. Socrates (who said something about virtue and money, as I recall) merely by virtue of having created the work, and by holding the copyright on it, can force every subsequent owner of his work after himself, to adhere to certain demands he makes.

As it happens, he can't. As the Supreme Court ruled in Bobbs-Merril v. Straus 210 U.S. 339 (1908), copyright does not so empower an author to make such demands. Perhaps this would not be so, if the system were designed differently, but readers apparently do not believe that the benefits they can gain from allowing authors the power to make such extravagant claims are worth any possible benefit which they could accrue as a result of it. What the author believes or wants is wholly irrelvant, so long as he cannot offer the public something more valuable in return.

It is in fact, the reader's right's which the author must invariably rely upon. It's true that American society has imposed a balance, (in more ways than you list) but that balance will always favor society, even if it means preventing an author from exercising what he fallaciously imagines to be his rights.

Lastly, there was this. I -- some time ago -- said this:

*Is it piracy -- outside of 17 USC 1201 -- to trade serial numbers? Are serial numbers themselves protected by copyright, or unable to be copied within some exception or defense? Piracy typically involves the transfer of actual software, but that isn't likely to happen here, as Ambrosia distributes the software on its own. Worth looking into, in my copious free time, even if presently moot.

And you replied with this:

Yes, if the license for use says it is. If you don't agree with the software's license, don't use it. If you download software and install it, even if you used a hacked serial number, you are bound by the software's license. If the license says you must obtain the serial number legally from the software's publisher, no amount of whining about "But what prevents me from ..." will change the fact you have violated the license.

Before I begin, note well that this portion of the discussion is predicated on the assumption that 17 USC 1201 does not exist. I'm interested here in determing how certain portions of the law would be used in response to this situation, not the whole law as it now stands.


Firstly, I asked "is it piracy to trade serial numbers?" You assert that it is, because it is a violation of a licensing agreement. This is, on its face, wrong in at least two respects. First, I am not a party to any licensing agreement. A license agreement is a contract, and no party who has absolutely not agreed to a contract can be said to violate it by any action or inaction whatsoever. This is pretty plainly obvious. You, for example, cannot violate the terms of my lease with my landlord by owning a dog, because you're not a party to our agreement.

Secondly, IIRC, there are exceptionally few causes of legal action which can be created by contract, or breach thereof. Certainly, if I WERE a party to an enforceable contract, and if the contract prohibited such behavior, I would be in breach. Breach is entirely distinguishable from piracy.

License agreements certainly have a potential to impose some kind of liability on me if I were trading serial numbers. But this potential is unrealized if I am not a party to them, nor is that liability likely to be beyond the realm of contract law, as you suggest.


Secondly, in obtaining software, I would obtain it through a perfectly legal channel, in this case, downloading it directly from Ambrosia. It seems unlikely that obtaining software via that channel is an infringement of Ambrosia's copyright, seeing as how they themselves provide it. So I am curious then -- is it an infringement of Ambrosia's copyright to obtain without their permission, a serial number (again e.g. "12345").

Since the serial number transfer is the only unauthorized transfer here, is the serial number itself protected by copyright? If so, is it protected under its own copyright? This seems dubious, as the serial number doesn't seem to fall within the minimal modern standards for a sufficiently creative work so as to qualify. (contrary to the opinion of some here, not EVERYTHING is copyrightable... shopping lists and phone book listings are the canonical examples, though of course, Congress or the federal judiciary could make anything at all uncopyrightable) In that case, does the serial number fall within the ambit of the copyright of the software itself? It's certainly possible, but it seems odd to me, and this is chiefly what I hope to SOMEDAY look into, though I guarantee that day won't be soon with my present workload.


Thirdly, since Ambrosia imposes no contractual terms upon receipt of the software, does this mean, in line with the recent Softman and Netscape cases, that no license binds the user that is merely in posession, and who has not used the product? Likely so. The validity of software licensing after the software has been obtained is, IIRC, in doubt. It is possible that the software is never validly licensed, indeed, CANNOT, be validly licensed, at all. I have reason to suspect that this is indeed the case for numerous international users of Ambrosia's software. As I presently don't have the full and complete license in front of me to look at, Andrew having been inexplicably unhelpful in that regard, if not downright hostile, it's difficult to say.


Fourthly and finally, we come down to a question you assumed I asked, but which I never did. Is it infringement to use software that was legitimately obtained, where you disagree with a license but use it anyway, or where the license is unenforceable? As it stands, from previous research, I believe that no answer has been agreed upon, and that the subject is hotly disputed. (and of course, breach of the license is also dependant on this)

In short, the whole field is of great interest. It's why I try to stay on top of new developments. We have wandered greatly afield of course, but I think that the demonstration of the intent and nature of copyright was worthwhile. Particularly as it strongly implies that Ambrosia's attempt to stamp out piracy, and similar attempts by other copyright holders may, and certainly probably should, yield a result hostile to the interests of copyright holders, as the bargain corrects itself, and swings back towards the optimal point. But we'll see.

And again, I'm sorry about the extreme length here.... I hope it doesn't dissuade the interested reader.

[kamprath]

I guess that old saying applies: "If you can't dazzle them with your brilliance..."

Plain and simple: By TODAY's laws, the software copyright holder has the right to impose license conditions for use of the content protected by a copyright. If you don't like the license conditions, DON'T USE THE SOFTWARE. If too many people chose not to use the software, then maybe the software copyright holder might be interested in changing the license - but then again, maybe they won't. What ever the case, not liking a (legal) license does NOT give a person the right to violate it.

Can it be any more simple?

Michael

Originally posted by cpt kangarooski:
<STRONG>I know that I have a reputation for being long-winded. And I know that this subject is not easily accessible, or even interesting to many people here.

BUT, in order to properly address the latest comments, I'm afraid that things are going to get rough. Please bear with me, it all really does make some sense in the end, I hope.




Before I begin, note well that this portion of the discussion is predicated on the assumption that 17 USC 1201 does not exist. I'm interested here in determing how certain portions of the law would be used in response to this situation, not the whole law as it now stands.


Firstly, I asked "is it piracy to trade serial numbers?" You assert that it is, because it is a violation of a licensing agreement. This is, on its face, wrong in at least two respects. First, I am not a party to any licensing agreement. A license agreement is a contract, and no party who has absolutely not agreed to a contract can be said to violate it by any action or inaction whatsoever. This is pretty plainly obvious. You, for example, cannot violate the terms of my lease with my landlord by owning a dog, because you're not a party to our agreement.

Secondly, IIRC, there are exceptionally few causes of legal action which can be created by contract, or breach thereof. Certainly, if I WERE a party to an enforceable contract, and if the contract prohibited such behavior, I would be in breach. Breach is entirely distinguishable from piracy.

License agreements certainly have a potential to impose some kind of liability on me if I were trading serial numbers. But this potential is unrealized if I am not a party to them, nor is that liability likely to be beyond the realm of contract law, as you suggest.


Secondly, in obtaining software, I would obtain it through a perfectly legal channel, in this case, downloading it directly from Ambrosia. It seems unlikely that obtaining software via that channel is an infringement of Ambrosia's copyright, seeing as how they themselves provide it. So I am curious then -- is it an infringement of Ambrosia's copyright to obtain without their permission, a serial number (again e.g. "12345").

Since the serial number transfer is the only unauthorized transfer here, is the serial number itself protected by copyright? If so, is it protected under its own copyright? This seems dubious, as the serial number doesn't seem to fall within the minimal modern standards for a sufficiently creative work so as to qualify. (contrary to the opinion of some here, not EVERYTHING is copyrightable... shopping lists and phone book listings are the canonical examples, though of course, Congress or the federal judiciary could make anything at all uncopyrightable) In that case, does the serial number fall within the ambit of the copyright of the software itself? It's certainly possible, but it seems odd to me, and this is chiefly what I hope to SOMEDAY look into, though I guarantee that day won't be soon with my present workload.


Thirdly, since Ambrosia imposes no contractual terms upon receipt of the software, does this mean, in line with the recent Softman and Netscape cases, that no license binds the user that is merely in posession, and who has not used the product? Likely so. The validity of software licensing after the software has been obtained is, IIRC, in doubt. It is possible that the software is never validly licensed, indeed, CANNOT, be validly licensed, at all. I have reason to suspect that this is indeed the case for numerous international users of Ambrosia's software. As I presently don't have the full and complete license in front of me to look at, Andrew having been inexplicably unhelpful in that regard, if not downright hostile, it's difficult to say.


Fourthly and finally, we come down to a question you assumed I asked, but which I never did. Is it infringement to use software that was legitimately obtained, where you disagree with a license but use it anyway, or where the license is unenforceable? As it stands, from previous research, I believe that no answer has been agreed upon, and that the subject is hotly disputed. (and of course, breach of the license is also dependant on this)

In short, the whole field is of great interest. It's why I try to stay on top of new developments. We have wandered greatly afield of course, but I think that the demonstration of the intent and nature of copyright was worthwhile. Particularly as it strongly implies that Ambrosia's attempt to stamp out piracy, and similar attempts by other copyright holders may, and certainly probably should, yield a result hostile to the interests of copyright holders, as the bargain corrects itself, and swings back towards the optimal point. But we'll see.

And again, I'm sorry about the extreme length here.... I hope it doesn't dissuade the interested reader.</STRONG>

[cpt kangarooski]

Plain and simple: By TODAY's laws, the software copyright holder has the right to impose license conditions for use of the content protected by a copyright. If you don't like the license conditions, DON'T USE THE SOFTWARE. If too many people chose not to use the software, then maybe the software copyright holder might be interested in changing the license - but then again, maybe they won't. What ever the case, not liking a (legal) license does NOT give a person the right to violate it.

Actually, again IIRC, the validity of the license is in doubt. Netscape, for example, tried to impose licensing terms on software downloaded through its Smart Download facility, and was unable to do so! Even ordinary EULAs are not known to be enforcable in the present day.

Indeed, given the lack of a pre-download license from Ambrosia, I rather suspect that I could legally distribute their software in competition with them, provided that each copy I sent out was a fresh copy downloaded from their server. The similarities to the Softman case imply this, and it was a case in which Adobe attempted to enforce their license against a reseller, and failed.

But what I'm more interested in, fascinating as that is, is WHY any publisher would choose to license their software, instead of simply selling it. What benefits do they accrue by the former that cannot be had by the latter?

[ 01-15-2002: Message edited by: cpt kangarooski ]

[kamprath]

Originally posted by cpt kangarooski:
<STRONG>

Actually, again IIRC, the validity of the license is in doubt. Netscape, for example, tried to impose licensing terms on software downloaded through its Smart Download facility, and was unable to do so! Even ordinary EULAs are not known to be enforcable in the present day.

Indeed, given the lack of a pre-download license from Ambrosia, I rather suspect that I could legally distribute their software in competition with them, provided that each copy I sent out was a fresh copy downloaded from their server. The similarities to the Softman case imply this, and it was a case in which Adobe attempted to enforce their license against a reseller, and failed.

But what I'm more interested in, fascinating as that is, is WHY any publisher would choose to license their software, instead of simply selling it. What benefits do they accrue by the former that cannot be had by the latter?

[ 01-15-2002: Message edited by: cpt kangarooski ]</STRONG>

Why outright selling intellectual property tends not to be prefered is because selling it (like the software) transfers all rights to the buyer. That means the buyer can make multiple copies and resell those copies. Obviously, if the original owner is tryingto make a living off of his/her intellectual property, then they have to make the terms of the deal acceptable. This happens all the time in the software industry when a software developer sells their software to a publisher. The developper makes their 1 time windfall, and the publisher then tries to make money by selling "licenses to use" to end users. The license to use allows end users the benifits of the function of the software, but the copyright owner still retains the benifits of "copyright ownership" -meaning controlling how and when (within the confines of TODAY's laws) someone who doesn't own the copyright can use the software.

Again, if you don't like the terms of a license, the response should be simple - don't use the software.

[cpt kangarooski]

Why outright selling intellectual property tends not to be prefered is because selling it (like the software) transfers all rights to the buyer.

This is absolutely wrong. The language surrounding this issue leads to this error which you are not the only person to hold. Allow me to clarify it.

If Stephen King writes a novel, he typically holds the copyright to it. If he offers to sell a copy of his novel to you, what he is proposing is the sale of a single book. No rights, other than the property rights over the tangible paperback you can hold in your hand, are conferred as part and parcel of the sale. That is to say, you own ONE book, a single object you can put on a shelf, or in the bathroom.

King's copyright was NEVER sold as a consequence of the sale of the book. Those rights were not only retained by him, they were never even offered by him, even as a consequence of his offering the book itself.

The copyright is independent of any tangible copies of the book. King can undertake a campaign of burning all copies of his book which he owns as personal property, and in fact own NO copies of his own book, and STILL retain the copyright.

The copyright is simply the right to make MORE copies of the book. It is not the right of ownership of any particular book. Below is an excerpt from the actual copyright law of the US making this point incredibly plain.

Ownership of a copyright ... is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object....
17 U.S.C. section 202 (2002)
(emphasis mine)

Therefore, if Ambrosia sells COPIES of their work sans any license agreement whatsoever, they do not lose the exclusive right to make additional copies of it. That is, the sale of a copy of a work does not cause the copyright over that work to also be sold.

In the situation involving a developer who recieves only a single payment, and a publisher who can make copies at will, the developer apparently sold the COPYRIGHT to the publisher. It is certainly not necessary that a developer do so. I'm certain that there are publishers who are happy to simply collect a fee for their work from the developer, publish the work, and pass the remainder of the profit to the developer copyright holder. It's not entirely unusual in other fields. (e.g. vanity presses, especially)

Note, of course, that their exclusive rights are NOT all-expansive. If Ambrosia sold me a copy of their software outright, I can still make backup copies of it. Also, I can make any copies necessary for me to actually use it (e.g. copying the software from CD to hard disk, or to RAM). The government does not grant Ambrosia the right to copy their work under those circumstances exclusively. I'm allowed to make those copies, without impairing the actual right of Ambrosia to generally prohibit copying otherwise.

(these provisions are in 17 U.S.C. 117, and put an end to the claims that licensing of copyrighted software was necessary in order for a user to run it or back it up)

So again, I ask: Given that it is established that Ambrosia can sell individual copies of their software to users without imperiling their ownership of the copyright, and given that users can then use and copy that software in ways that are considered normal already, what possible advantage is gained by licensing, as opposed to outright sales.

As always, I look forward to lively debate on the subject. And any developers who would care to chime in would be most welcome, even if merely stating their reasons w/o engaging in debate.

Filibuster? What? Huh?

[cpt kangarooski]

Naw... just my admittedly poor writing style.

Filibusters are an attempt to DELAY some expected action. Senators do it so that they prevent votes from being taken. I'm not trying to stall anything, and in fact, I encourage people to chime in.

If you want to label me, 'long winded' would be far more accurate. I apologize, but I do think that my content is basically good anyway.

[ 01-15-2002: Message edited by: cpt kangarooski ]

[dogzilla]

Originally posted by cpt kangarooski:
<STRONG>So again, I ask: Given that it is established that Ambrosia can sell individual copies of their software to users without imperiling their ownership of the copyright, and given that users can then use and copy that software in ways that are considered normal already, what possible advantage is gained by licensing, as opposed to outright sales.</STRONG>

I'm really curious as to this as well. Unless I'm mistaken, this is the standard approach of every single commercial software developer on the planet, right? They *all* license as opposed to selling their software.

I'm curious as to why this is the case. I'm sure there's some benefits, but are the benefits exclusively for the developer/seller, or is there some advanatage for the purchaser as well?

For comparison's sake, what is the approach of the recording and movie industries as far as CDs and DVDs? Do you buy those or license them as is the case for software? Books are bought outright I think.

It seems weird to me that software is licensed. If you consider software to be a "machine or tool" then it should be sold, as are other mass-produced pieces of machinery. If you consider it to be a "performance", then it should also be sold (as I think CDs and DVDs are). What's so special about software that it gets licensed?

And if it gets licensed, then shouldn't responsisbility for it's suitability to a purpose remain with the developer? I mean, if I'm just licensing software, and it's full of bugs and/or eats my data, shouldn't the developer retain responsibility? After all, they are retaining ownership of the specific piece of software running on my computer, right?

I guess I don't understand how software developers can retain ownership and yet avoid all liability for the actions of their software. Or does licensing allow them to sidestep this issue?

[cowerd]

For comparison's sake, what is the approach of the recording and movie industries as far as CDs and DVDs? Do you buy those or license them as is the case for software? Books are bought outright I think.

It seems weird to me that software is licensed. If you consider software to be a "machine or tool" then it should be sold, as are other mass-produced pieces of machinery. If you consider it to be a "performance", then it should also be sold (as I think CDs and DVDs are). What's so special about software that it gets licensed?

DVD's and CD's. You don't own anything when you pay for those things. The artists don't even own the rights to that material.

Search GOOGLE for "don henley" and "work for hire" for a better explanation than I can possibly offer.

For DVD see DeCSS, whose author was just indicted for hacking or some such nonsense, 10 Janaury 2002, bu Norwegian authorities.

[cpt kangarooski]

Well, I did say that I wasn't the only one who is questioning Ambrosia here.

Anyway, not ALL commercial software developers share this approach. There are companies which sell software -- making it commercial -- but who simply do so sans license. Most software covered under the GPL is either given away freely or sold. The GPL is not a license effecting use of the product, and it is not necessary to agree to it in order to use it or to gain property rights over the particular copy. Rather, it is a license governing copying the product in ways normally prohibited by copyright, and in this respect is highly unusual.

You're right though, in that it is the dominant approach, by far.

With regards to CDs and DVDs, these are sales of a good and are not encumbered by licenses, as far as I am aware. In fact, because software is so often sold as a good, there is a growing opinion, with favorable court cases, that software licenses are generally invalid, and that the software is ALSO not encumbered by a license, even if the publisher purports otherwise. Books are absolutely bought outright.

The evidence of this outright sale is clear. If books, CDs, DVDs, etc. were not sold, it might be impossible to buy and sell copies of them used. But the public benefit of a market in used copyrighted works is quite clear and so far copyright holders have not been able to ban them, though not for lack of trying. (IIRC, Garth Brooks HATES the idea that people can buy and sell his music between each other)

The only reason I've ever been able to find for software licensing is historical. Until 1976, as I recall, compiled software was simply not copyrightable. If someone obtained a copy of such software through any means, they were free to copy, distribute, use or modify it at whim. Licenses were used to ensure that purchasers of software from the original publisher could not run wild with it.

After copyright was imposed, it became clear that it had gone too far. Users could not make copies of the software that were necessary just in order to use it! (i.e. copying a program to RAM as a necessary step in using it was then considered a copyright violation) This meant that now USERS needed licenses, even though the rights of developers were perfectly secure, and so the practice continued.

Eventually though, Congress passed another law which said that copyright did not apply to copies made of legally obtained software which were made as a necessary step in order to use it, or to backups of such software. This is how the law stands today.

As for warranties, AFAIK (and don't take any of anything I say as legal advice, as always) they work like this:
If a seller or manufacturer makes no statement with regards to warranty, a warranty is implied to exist and will be enforced by the courts.
But, if such parties disclaim a warranty, that disclaimer will be upheld, and no claim of breach of warranty can be made.
But again, under some circumstances, a disclaimer is powerless, and a warranty will STILL be upheld regardless.
Also, a party may always actively make guarantees about a product.

In the US, warranty disclaimers are pretty common, and can simply take the form of appropriate notices included along with a good which is sold normally. Go buy a toaster or something, and you'll see a bunch of disclaimers in the box. This doesn't mean that the toaster isn't now your property though.

Notably, however, there's no reason why a program that is sold OR licensed cannot be required by law to bear warranties that cannot be disclaimed. I believe that any number of European countries do so, and so even if Ambrosia includes disclaimers in their EULA to that effect, users in certain nations may be entitled to warranties anyway.

This is incredibly dependent on foreign and domestic laws, and their interactions and enforcability abroad. So you cannot take anything I say for granted on the subject, but I encourage you to look into yourself.

[Brazuca]

Capt....


First I would like to applaud your efforts and your obvious determination in answering questions that some here find too troublesome to engage in.
I still don't know what my veredict is regarding piracy, and perhaps software is a medium that requires a new paradigm and new laws.

I will keep on reading this forum and I hope that others with dissenting opinions chime in as I suspect that there is more to the other side than the simple "don't like it, don't use it" argument.

[el_humpo]

I don't think my priorities are so odd. I was just making a couple of points.

But to then turn around and trust an entirely different set of people, people who you likely have never and will never meet, to fulfill their duty, seems very odd. More so, given the extreme lengths that copyright holders NOW who have works due to enter the public domain have gone to, so as to continue to monopolize virtually all the benefits possible.

If it is written in Ambrosia's license statement that they will release an unencumbered version if and when they go under, then I have something more than blind trust; I see no reason why they would want to violate their own license, and users would have grounds for legal action if Ambrosia did not comply. Of course this is assuming that EULAs are legally valid - if they are not, then we can all feel free to pirate serial #s and put our favorite Mac developers out of business

It is true that I choose to trust Ambrosia and many other Mac shareware developers when I use their software. However, I will continue to support them, because they help advance the Mac platform...a platform without which my computing experience would be much more unpleasant. Also, up to this point, they have proven much more trustworthy than Microsoft and Windows developers (Apple's iTunes installer notwithstanding ).

I do prefer to use open source software, and I support its development when I can. It would be nice if developers could use a 'restricted source' license - distributing the source code along with their program, but not allowing users to freely copy it about. However, I'm not suggesting this is a viable way for a company to stay in business, especially with so many users who have no qualms about pirating software.

Also, regarding the copyright issue, I don't think that reducing the term drastically will do much good. Even 7 year old software wouldn't be very useful today. I think only open source software will ever fulfill the 'public good' intent of copyright law, at least as its been explained here.
Keep in mind I'm not defending restrictive EULAs or Byzantine copy-protection schemes. But I care about the Mac, and want to support the platform. This isn't Microsoft or Adobe we're talking about here. While it may seem hypocritical to Millenium, I am willing to cut Ambrosia and other small developers a little slack - and it really doesn't seem like this scheme is going to cause users any trouble.

[Arakageeta256]

Filibuster can also be an attempt to discourage some sort of action in a... well... filibuster-like fashion. A number of people here have posted very large... posts. I'm only saying that long posts may not only be a sign that someone has something important or something of substance to say-- rather long posts can be used as a method to discourage counter arguments. That is, the long poster might hope that their opponent is too lazy or is intimidated by the task of having to retort with a well put together counter argument. That is, the long post discouraged a counter argument-- a filibuster.

(And yes, I looked it up before posting here.... I had to figure out how it was spelled. )

[ 01-15-2002: Message edited by: Arakageeta256 ]

[dogzilla]

Originally posted by Arakageeta256:
<STRONG>Filibuster can also be an attempt to discourage some sort of action in a... well... filibuster-like fashion. A number of people here have posted very large... posts. I'm only saying that long posts may not only be a sign that someone has something important or something of substance to say-- rather long posts can be used as a method to discourage counter arguments. That is, the long poster might hope that their opponent is too lazy or is intimidated by the task of having to retort with a well put together counter argument. That is, the long post discouraged a counter argument-- a filibuster. [ 01-15-2002: Message edited by: Arakageeta256 ]</STRONG>

Is the repeated use of "That is..." a similiar tactic?

Well, I realize that it's not considered "cool" to care enough about anything to actually have something to say about it, but I'm glad the Cap'n does. You may not agree with his points, but you have to admit that he's put thought into them.

That being said - I'm still confused by the two posts following my previous one, and I'm still not clear as they seem to contradict each other, so I'll ask again: when one purchases a CD or DVD (or VHS tape), does one purchase or license it? Is it like a book or is it like a piece of software?

I think what the Capn said was that software *is* unique and that it is licensed instead of sold for purely historical reasons - the sort of industry inertia that seems so popular nowadays ("that's the *everyone* does it"). It also seems as though this gives the developer/seller rights over and above those given to the developers/sellers of other similar products, while limiting the rights of the buyer. And lastly, it appears that the purchasing process extends to sellers/developers a certain liability protection (via EULAs) that is unmatched in any other product category - and may not be valid in the long run.

Now I should point out that this is in no way specific to Ambrosia, but rather the software industry (at least the PC software industry - custom software development is dramatically different in terms of liability and ownership issues) as a whole. Given the protections extended by the public to software developers, I'm beginning to think that perhaps they need to modify their approach, or to have it modified by the courts. Specifically, that a purchase of software should be a purchase of software, and not just the media it comes on, or alternately that any licensing of software where the seller retains ownership of the software running on my computer means that the seller is also responsible for fitness for a specific use and/or liable for damages resulting from an lack of fitness for a particular use (eg: bugs that result in the loss of data or hardware).

I just don't think that software developers should be allowed to have their cake and eat it too, at least not when it infringes on the rights or curtails the reasonable actions of the purchaser.

[CyberGreg]

So... now that my eyes are bleeding... from reading all four pages, other than a select few (you know who you are) what is the outcome of this long and sometimes pointless discussion?

Anyone, anyone... Ambrosia actually improved the registration process, yes indeed they listened and made an improvement!

I am not opposed to Ambrosia's registration scheme (I'm not going to Zimbabwe for another year or so ) I downloaded and tried Snapz Pro and didn't see a need to buy it, so far no problem.

I WILL PURCHASE EVN once it's released regardless of registration scheme. To loosely quote ('cause in this thread that IS the thing to do!) someone from the WWF... I'm going to purchase EVN "because it's that DAMN good!"

Please, please don't waste your time replying (with quotes) because I promise I'm never looking at this thread again!

[Arakageeta256]

...I can't wait for EVN.... Coldstone came out today. Not my thing though.

[cpt kangarooski]

Greg--
Sorry.

Arak--
Well, I like to think that if the long post discourages a counter argument, it is because it illustrates a substantively superior position. I do have other things to do, so I really write only as much as I feel I need to to adequately support my argument. I don't, however, have time to significantly edit the post while the debate remains fresh.

Generally, my intent is to stimulate argument. I may not be good at it, but I really am not trying to stifle or intimidate anyone. Frankly, I _love_ getting long similarly detailed and involved posts back. I'd prefer that a post run the risk of stifling under too much involvement than burning out for want of it.

(at least you weren't saying that I was stirring up trouble in Latin America

Dogzilla--
Naturally, it's difficult for you to get an authoritative answer to your question. None of us here are experts in law, and this is a question that hasn't been settled at all! But allow me to quote from the recent Softman case:

A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code.

...

It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange. ... The Court finds that the circumstances surrounding the transaction strongly suggests that the transaction is in fact a sale rather than a license. For example, the purchaser commonly obtains a single copy of the software, with documentation, for a single price, which the purchaser pays at the time of the transaction, and which constitutes the entire payment for the "license." The license runs for an indefinite term without provisions for renewal. In light of these indicia, many courts and commentators conclude that a "shrinkwrap license" transaction is a sale of goods rather than a license.

...

The Court agrees that a single payment for a perpetual transfer of possession is, in reality, a sale of personal property and therefore transfers ownership of that property, the copy of the software.
Softman v. Adobe, 171 F. Supp. 2d 1075, 1084, 1086 (C.D. Cal., 2001)
(emphasis mine)

Now, there is a VERY important caveat here. Softman is a case revolving around a company, Softman, obtaining copies of Adobe software and reselling it. Softman never actually uses the software itself. Therefore, "[t]he Court finds it unnecessary to reach the question of the general validity of shrinkwrap licenses at this stage because the Court has determined that SoftMan is not bound by the EULA because there was no assent to its terms." Softman, 171 F. Supp. 2d at 1088. I doubt that Judge Pregerson is backing down here because he's not confident that he's capable of attacking the validity of the licensing. Rather, it is not necessary to properly resolve this case. The personal opinion of a judge is useful, but carries very little weight in comparison to the real substantive judgement.

There are still cases however, finding general software licenses (site licenses or the GPL involve terms not normally included with sale, and tend not to be objectionable) to be unconscionable, to be overridden by the UCC, to be invalid adhesory contracts, etc. If there were more than a handful of relevant cases, and if there were not basically an even split between the two stances, the answer would be more forthcoming.

Given the lack of any significant legalese with the vast majority of CD or DVD purchases, and the common sense 'economic realities' surrounding the purchase thereof, it seems safe to believe that they are sold. If you're really curious however, a more authoritative answer -- and one that could be safely relied upon -- could come from a lawyer licensed in your jurisdiction who was well-versed in copyright, contract and UCC law.

Humpo--
I don't think that their license is germane, nor their future intent. Bear this in mind:

The second goal of the Copyright Clause is to ensure that works enter the public domain after an author's rights, exclusive, but limited, have expired. ... The public is protected in two ways: the grant of a copyright encourages authors to create new works, ... and the limitation ensures that the works will eventually enter the public domain, which protects the public's right of access and use.
SunTrust v. Houghton Mifflin, 268 F.3d 1257, 1262 (11th Cir., 2001)

I do not believe that the court here is saying that only some works need enter the public domain. Or that the public's right of access and use is limited after term expiration.

If I download a copy of Snapz NOW, I have a right to use that copy freely, Ambrosia be damned, as soon as the term expires. I may have limited or unlimited rights to use it at any time prior to that depending on decisions of the courts or Congress. I do not believe that I am required, in order to exercise my rights, to request something else from Ambrosia, which may not even be in a position, or of the inclination to fulfill their promises anyway. It's easy to imagine a number of scenarios in which the promise is not delivered.

Now, I'm NOT interested in pirating Ambrosia's works. I am not trying to be hostile towards their position. However, as I discussed at length above, the sole reason that I, or anyone else condones any attempt by Ambrosia to secure exclusive rights in their work in any respect, is self-interest. You, yourself appear to agree with me. You don't want to put our favorite developers out of business -- but I suspect that this is only because you benefit from their continued existence. Why on Earth _should_ I care about a developer if I do not somehow benefit from it? Altruism is nice, and I practice it, but it is not a tolerable foundation for a system of copyrights.

Certainly Andrew has _plainly_ said that _he_ is not acting altruistically. He's said that his intent for this scheme is to promote Ambrosia's interests. I am sure that if possible, he will act in the vein of virtually every other single copyright holder in existance, and continue to act entirely in his interests. Where he limits himself, it is because his internal cost/benefit calculus urges him to do so, and not because of a genuine concern for the desires of users.

What's good for the goose is good for the gander; I don't fault Andrew for acting in self interest. I merely reiterate that he does not have a free hand to pursue it. His range of options, as with any author, is restricted to however much readers are willing to grant him. As readers always must act in their own self interest, that range will settle to a point which is most favorable to us.

It's like livestock. If cows ruled the world (as in "The Far Side") everything would be pasture, no one would eat beef or veal, predators would be wiped out, and milk would only go to calves. If pro-animal rights vegans ruled the world (as in California although no one would eat beef, veal, or dairy products, there would still be predators, and there probably wouldn't be many cows. As it happens, dairy farmers rule the world (as in Wisconsin) and cows are impressed into the service of mankind. They benefit from shelter from predators, but they also wind up on the dinner table.

The cows are authors -- they want their well being sated by the elimination of anyone who would in even the slightest way harm them. The vegans are roughly analagous to readers in a world without copyright. They're not really interested in cows, and let things sort themselves out, to everyone's detriment. The dairy farmers are readers with copyrights. They promote the interests of cows, to a limited extent by cow standards, but for their own sake, and to hell with the cows.

A certain amount of piracy and other unauthorized usage, etc. is desirable socially. It is tangibly harmful to society to promote the interests of authors to their full extent. Yet Ambrosia is trying to do just that! I maintain that they should suck it up -- if they want to minimize piracy, they should do so in ways that are guaranteed not to impair legitimate uses as determined by readers. This pretty much limits their options to suing pirates. Certainly Ambrosia appears to have sustained itself for some years without doing anything like what they are now. I don't believe that there's any compelling reason for them to start. And I've already mentioned numerous harms that result from it. (there is an interesting article along similar lines on kuro5hin.org, where the author does some math to demonstrate the social benefits of some piracy)

Moving along...
I'd like to point out that there is ABSOLUTELY NO NEED FOR A LICENSE FOR SOURCE CODE. Source code is just as protected by copyright as binaries are. If I sell you outright some of my code (don't bother -- it's crap), even bundled with a finished binary, you do not have the right to copy it willy nilly. You can do a little copying, and you can look at it and learn, in the same way that we _ENCOURAGE_ such learning in literature, music, art and film classes. But you can't go nuts. A license is utterly superfluous, possibly invalid, and certainly harmful and inefficient.

As with books, which can be copied trivially, the best and preferred, if not only protection method is the lawsuit.

With regards to term length, thanks for your suggestion that copyright holders should be stripped of their rights within a very short period of time, (7 years) in order to maximize public benefit. I'd like to know what Andrew thinks, of course, both in his capacities as an author, as a user of other people's software he could get for free and improve at will, and as an author who could thereby take improved parts of other people's work and use them in creating something new.