Posted on 05/18/2005 10:30:09 AM PDT by Mike Bates
Equally important is the question of damage and loss. Has anyone suffered any provable damage or loss? Between those two issues, you can see why it is infringement, rather than theft, that is happening here.
A license is simply a contract for services - you're paying for the service of having that software provided to you and available for your use. The taxi driver doesn't "sell" me a seat in his cab, really - I don't get to take a bucket seat home with me at the end of the ride, but if you try to take off without paying, you'll discover that the sale of services is very much an enforceable contract, and taking services without paying is considered theft ;)
Equally important is the question of damage and loss. Has anyone suffered any provable damage or loss?
That's not necessary for theft of services either. If I sneak into an empty movie theater, and don't deprive any paying customer of a seat, it's still theft of services, even though neither the theater nor the studio suffered any demonstrable loss beyond the loss of the sale to me. If I call a cab and tell him I want to go to the airport, and then jump out and run off without paying, it's still theft of services, even if he was going that way anyway and making an empty run to pick up someone else. The only thing necessary is to show that you received services to which you were not entitled - loss or harm isn't a necessary factor, although it's always nice if you can show direct loss, of course.
You are correct the proper term IS 'Copyright Infringement'
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17_10_5.html
You are NOT stealing the copyright you are infringing on it.
Add another term to your vocabulary: copyright infringement. If I steal a copy of Windows from the store, that's theft. If I copy and distribute copyrighted material without a license, that's copyright infringement.
A license is not a contract. A contract may include a license. A license is, by definition, the granting of permission to do something that person would not normally be able to do (007, License to Kill).
The taxi driver doesn't "sell" me a seat in his cab, really
The taxi ride is an implied contract of services (a ride) in exchange for a valuable consideration (money).
Subject to the terms and conditions, if any, of the agreement governing the license. IOW, the contract, either stated, as in a EULA, or implied, as when you climb into a cab.
The taxi ride is an implied contract of services (a ride) in exchange for a valuable consideration (money)
Software is subject to an actual contract, exchanging money for the use of said software. If you have no contract, you have no right to use the services of the publisher or the programmer.
It's still illegal, and morally wrong, for those obviously wishing to hide behind semantics. Not fooling anyone, but themselves.
Yep. It's more widespread than you think.
and microsoft sits on HUGE cash reserves.
I don't think that's correct. I think a license is a permit to use under the specified circumstances. The other examples are apples and oranges to software licenses.
If I sneak into an empty movie theater, and don't deprive any paying customer of a seat, it's still theft of services, even though neither the theater nor the studio suffered any demonstrable loss beyond the loss of the sale to me. If I call a cab and tell him I want to go to the airport, and then jump out and run off without paying, it's still theft of services,
The crime in the theatre example is trespassing. The taxicab example IS theft of services. Again, though, with a software license, the company is permitting you to use the software under the specified circumstances. They are not selling the bits or the disc. If you use the software contrary to the license, the violation is an infringement of the license agreement.
It took a while to reply to you because I wanted to do an internet search to bone up on the legal angle to all this. I couldn't find anything that indicates my position is wrong yet. If you find something, please write back. I'm persuaded by facts.
The totality of those "specified circumstances" is what constitutes the contract. Your EULA is a valid and binding contract that grants you the right to use software subject to the conditions therein - not abiding by the terms means you have no contract, hence no license, hence you are receiving services you are not entitled to receive.
The crime in the theatre example is trespassing.
And theft of services. Either way, so what? Trespassing doesn't require a showing of harm to be a crime either, merely that you're someplace without permission, akin to receiving services without permission.
If you use the software contrary to the license, the violation is an infringement of the license agreement.
What license agreement? By which I mean, suppose I decide that I don't agree with your contract and that I won't abide by it or be bound to it - I didn't read or agree to a EULA when I downloaded my pirate copy of Office, after all. So how can I infringe on a contract I'm not a party to, that I don't agree to? I can't - in fact, in that case, I don't have a contract, and hence I don't have a license to use the software. It's not that I'm "infringing" on the license agreement - I don't have a license agreement, and hence I'm receiving services I'm not entitled to have. IOW, theft of services. QED.
Look, I know the law doesn't strictly define it this way - you're not going to be prosecuted for theft of services if you get caught with software you don't have a license for. Nevertheless, the analogy is a pretty good one, insofar as you're not going to be able to define "services" in such a way as to not include software without also excluding a bunch of stuff that is generally considered a "service". I think that as a moral and ethical matter, if not a legal matter, taking software one is not entitled to use is much closer to theft of services than most people would care to admit, and hence the term "infringement" is deployed as essentially a legal euphemism - the fact that it happens to be legally correct does not change the ethics of the situation. If it's wrong to ride in a cab and not pay for it, it's wrong to use software and not pay for it if the author/publisher expects same, and the second case is no different than the first, morally or ethically, even if legally we call one "theft" and the other "copyright infringement".
But the legal difficulties exist because software companies do not SELL the software and the disc, but instead license the use of the software.
BTW, the license exists and is in force even if you don't agree to the terms. When you think about it, if that weren't the case, then the software companies would have no legal basis for sueing nonpaying users, because there would be no contract to enforce.***
But they can sue for enforcement because the license (the EULA) isn't a contract, it's a use license that is granted to the end user by the software company under specified circumstances.
*** One of the three legs of a contract would not be met. In fact, since you didn't pay for the thing, there is no Consideration, the second leg of a contract. To over simplify, Consideration is what you pay as your part of the contract.
And do not get Me started on bloated current releases that take up three CDs, minimal memory requirements of at least 128 Megs (after all, EVERYONE has THAT!), minimal useable resolutions starting at 1024x768 (after all, EVERYONE uses THAT!) and lessening support for older machines -like say, slower than 800MHz processors. Not to mention 'bootable distros' that only recognize PS/2 mice and do not see a standard Serial Mouse despite that being the default for years before, default gui configs that run just barely faster than a tortoise on a hot date, and 'You have selected a resolution that is not recognized' (the video card is not recognized) on the so-called 'bootable' CD.
And do not even get Me started on the topic of distros that need either a constant high-speed connection to the Net to install, or boot-from-CD options that do not take into account that there are some machines whose BIOSs' do not have provide that option.
I mean bloody 'ell! I still have a laptop with eight megs onboard (NOT upgreadable) that chugs along contentedly with W95OSR2 installed -but chokes and dies with any version of Linux that I have tried.
Of course, I still have not tried that old reliable distro of RedHat 4.2 that has served Me so admirably in the past. Then again, if I just wanted to run an old distro I could just stay with the MS setup originally on it...
Linux is absolutely NOT ready for the desktop as far as I can see.
Unfortunately, the software companies refuse to abide by the terms of their own EULAs. Ever tried to return a computer game you just purchased? Not Gonna Happen. How about a copy of any version of "MS WINDOWS"? Hint: do not hold your breath -or count on the refund helping with your children's college education some time down the road.
I, personally, have not yet tried it, but have you tried Puppy Linux? It's supposed to be targeted at older, less powerful machines. Also, it's only a 60MB download.
Still not quite. Software vendors like to stay out of contracts for the most part, except for large sales, and those contracts include licenses. Those contracts are negotiated so that both sides are happy. Heavily one-sided contracts are often broken by the courts, and most commercial software licenses are extremely one-sided in the vendor's favor. If these licenses were contracts, I could see most of them getting broken in court. Plus, contracts have to have as part of them a promise of performance, and all software licenses I've read explicitly deny a promise of performance.
Software is subject to an actual contract, exchanging money for the use of said software.
If the license was granted as part of a contract, fine. Otherwise, why do you think the BSA goes after pirates under copyright law instead of contract law?
It's not semantics, it's legalities. Infringement can be just as bad as regular stealing, or even worse in cases.
Exactly. Do they think that we are so stupid to believe it? Or are they so stupid themselves?
The second example is completely different from the first. You take money away from the cabdriver - he spent money on gasoline/tolls and he lost valuable time. Unless you "jump out" before he started :)
I think the basic misunderstanding of what a license is may be the main reason a lot of these guys don't like the GPL.
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