#239 From: "Ulrich Moeller" <djmutex@...>
Date: Fri Feb 22, 2002 6:45 pm
Subject: Re: Re: My take on this.. Dont accuse Kris for this ! umoellerde
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On Fri, 22 Feb 2002 12:51:28 +0100, JMA wrote:
>>And finally you don't need patents to protect source code. It is an
>>interlectual property like a book/song when it has reached a certain level.
>>And thus protected by the same laws, and yes I talk about europe here again.
>>So stop posting this BS here.
>>
>DO NOT ACCUSE Kris for posting BS !
>
>You may not agree with his stand on using "leaked source" but dont
>say he is wrong on legal matters unless you are able to prove it.
I am sorry, John, but I have to jump in here. Kris is wrong
on almost all points.
"Copyright" is one way of protecting intellectual property.
Patents and trademarks are two others. WRT copyright, in
continental Europe, the author of a piece of work (be it
software, a piece of music, or a book, or whatever) has the
_sole_ and _exclusive_ right to determine what can be done
with that piece of work. If you don't have either the
permission of the author or the law does not explicitly say
you're allowed to do what you're doing, you are _not_
permitted to do anything.
The details vary according to what kind of work it is --
i.e. the laws make a difference in what is allowed with
software and with music. For example, German law says it is
allowed to make private copies of music recordings (� 53
Urheberrechtsgesetz -- UrhG), but that is not allowed to
the same extent with software. (This is to correct another
posting that said it is allowed to make copies of software
CDs, which is plain wrong too.)
Kris is wrong when he draws conclusions from what is
allowed with music and applies these to software. The
regulations are simply different. His example of
Renaissance music wasn't terribly helpful either because
copyright expires 70 years after the author's death (� 64
UrhG, your country's regulation may vary).
[As a side note, your country's regulation may vary in
details, but since copyright law is based on international
treaties, the end result shouldn't differ much -- at least
in those countries that have signed those treaties.
Apparently Russia is an exception, but I know no details
there. If you believe your country is different, I guess it
will only be a question of time until the U.S. government
declares a trade war on your country until it helps raising
Microsoft's revenues too. Finally, Belgium is definitely no
exception because in the EU, copyright law has been largely
harmonized by EC directives.]
Now, with software this comes down to the following:
Without the authors explicit permission, you are _not_
allowed to do _anything_ with the software. That's why you
need a licence which tells you what is allowed and what is
not. The licence is simply a contract between the author
and the user of the software: the author grants you a right
to do certain things. If you do something that is not
covered by either the licence or explicitly by law, you are
acting illegally. (See � 69 c UrhG.)
Kris is also wrong when he says copyright is only about
binaries. Already the source code is copyrighted. If Kris
had looked at _any_ of the Netlabs source code, he'd soon
realize that for some reason there is normally a copyright
statement at the top of each file. Even compilation is
protected (see � 69 c UrhG).
Actually, things are very simple here. IBM has not allowed
anyone on this list to have or copy the source code, let
alone compile it and redistribute copies of binaries
compiled from that source code. So everyone who has OS/2
source code on his hard disk is acting illegally already
because he made a copy when he saved the attachment to his
hard disk, or when he downloaded a zip file from the
Internet. Everyone who is compiling that source code, even
without distribution, is acting illegally, because there is
no permission to compile the code either. It is especially
illegal to distribute either the sources or compiled
binaries on the Internet.
This has two consequences.
1) If IBM can prove that someone has a copy of the sources,
they can sue that person for a) destruction of all copies
of the sources and b) damages that IBM might have suffered
from the possession of the sources (whatever that may be in
the concrete case I will not comment on now). In Germany,
see � 97 UrhG. If IBM can prove that this person possesses
the sources, it is up to that person to prove that he has
IBM's explicit permission to do what he did. Of course he
can't.
To make this clear, the highest German civil court
(Bundesgerichtshof) has repeatedly stated that downloading
or installing software already counts as "copying". This is
in compliance with � 96 c UrhG, which translates into "As
far as loading, displaying, running, transferring or
storing the computer program involve copying it, these
actions require the permission of the copyright holder,
too."
So I am not kidding here, and it is simply wrong to say
"only binaries" or "only sources" are affected, or
"possessing is OK". Anyone who has downloaded even the
"osFree" binaries could theoretically be sued, period.
2) In addition, copyright violations are criminal offenses.
In Germany, see � 106 UrhG, which states that unauthorized
copying or distribution are to be punished with either a
fine or up to three years (!) in prison. Note that the
latter is not very probable on the first offense, but it is
possible. I spent the last three months with a prosecutor
who did nothing but, day after day, confiscate computers
with illegal software and bringing people to court. And
believe me, the prosecutors are quite efficient in that
area, even over here in Berlin, where the justice
department is in a complete mess normally.
Finally, all the above was only about copyright. I haven't
even talked about patent violations yet, which are a
completely different can of worms.
I hope this made a few points clear. So please, everyone
here: don't spread legal misinformation if you have no clue
what you're talking about. Everyone on this list who is
saying "it is legal to rip" or "let's hurt IBM, they have
left us alone" is actually urging people to commit crimes.
--
Ulrich M�ller (Berlin, Germany)
djmutex@...
http://www.xworkplace.org
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