At 12:31 AM 9/8/2003, JaMi Smith wrote:
A perfect example of the New World Philosophy which states that there is no
right or wrong, and I can do anything that I want to, and you have no right
to tell me what is right or wrong, moral or immoral, ethical or unethical.

Since Mr. Smith wrote this, appending my rather long message in its glorious entirety to his mail, I assume I must have somehow expressed the philosophy he describes. I'd appreciate knowing exactly where I did this, so I can avoid it in the future.


I mean gee whiz, sure I stole a fifty thousand dollars from Bill Gates or
some other billionaire, but he won't miss it, and he certainly won't ever
use it, so it must be OK then because I need it.

Apparently Mr. Smith has totally missed the point. No one, by personally using Windows software in violation of the license agreement, has stolen a penny from Mr. Gates. Rather, such a person may have violated copyright law, a violation which might give Mr. Gates the legal right to recover something from the violator.


The state, in order to encourage the arts and sciences, has established copyright and patent rights. Violating copyright is not theft. I think that's a period at the end of the sentence. It is an action that may be against public policy and law.

Now, this isn't particularly relevant, but it used to be that copyrights expired. They were valid for a certain period, and could be renewed once. The period was 26 years, as I recall. However, in the seventies, the law was changed. The present rules are rather complicated:

For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire or is published anonymously, the copyright lasts between 95 and 120 years, depending on the date the work is published. All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.

Why did the law change? Could it have been the result of effective lobbying by the publishing industry (software wasn't yet an issue)? Copyright and Patent rights are established in the U.S. Constitution, *for limited times.* The change in the law happened gradually, as I recall. Congress extended existing copyrights for a time, then for another time. Eventually, I think it was realized that some new limit had to be set.

Copyright violation is a quasi-civil offense. It gives the owner of the copyright the right to go to court to enforce the copyright and to collect damages and costs, i.e., legal fees. When the owner goes to court, "theft" will not be alleged, at least not in a formal way. Rather, the owner may seek to establish and collect the commercial value of the infringing use. If the copyright was registered, the owner may also be entitled to an award of "statutory damages," amounts that are disconnected from actual damage, which could be up to $100,000 per infringement.

But gee whiz officer, I didn't hit anybody, and I am in a hurry, so why
should I have to stop at every one of those stop signs or only go 25 miles
per hour down this residential street, when I wasn't causing any problems by
going 50.

Funny you should mention that. There is a U.S. Federal standard for how speed limit signs are to be set, and generally the individual States are required to follow that standard. Basically, speed limits are not supposed to be set without an engineering study, and the basic criterion is the 85th percentile speed of actual unimpeded traffic on the road in question; the limit would properly be set, rounded up to the nearest 5 mph. Now, I've noticed that it is *extremely* common that the median speed is in excess of the posted speed limit. That's a clue that the speed limit has been set way too low.


Like most states, I think, Massachusetts has a "basic speed law," which is essentially that it is an infraction to travel faster than a speed which is reasonable and proper. However, to make enforcement easy, and for certain other purposes, not the least of which may be the tremendous revenue generated, there is a law which establishes that speed in excess of the posted speed, as established according to the regulations of the highway department, is considered prima facie evidence that the speed was not reasonable and proper.

I will now confess that -- some of you may be shocked, I'm sure -- I have been known to travel faster than the posted speed on occasion. A few months back, I was travelling through the town of Williamsburg at a place where the speed drops rapidly from 45 mph to 35 and then to 25. I was clocked by radar at 42 mph according to the officer. My wife was in the car. Let me say that my wife is quite ready to complain when she thinks I'm travelling too fast, and she had been quite happy at this point. But, gee, I was almost 20 mph over the speed limit, I must be a dangerous driver. Of course, if you actually drive 25 mph through that section of road, well, it feels awfully s l o w. And cars will stack up behind you.

It's been shown by traffic studies that people generally ignore speed limit signs. You can raise the limits, lower the limits, and the only effect it has -- unless you visibly and vigorously and continuously enforce the limit -- is that, if the limit is low, an officer can step out the door and catch a fish with no effort. I have some suspicion that if you have a Williamsburg address on your driver's license, or you have some other affiliation with the officer, you get a warning and not a ticket. There is *no* regulation of this.

Anyway, once I realized that the $175 fine was just the tip of the iceberg, insurance costs could rise as much as a net $1000, I began to do some research. I asked for and received a copy of all the traffic studies which had been done on that section of highway. The highway department thoughtfully included all the correspondence between the town and the highway department. First of all, there had been one speed study done at the exact location where I was stopped. The 85th percentile speed there was 42 mph. This would have led to a speed limit of 45 mph. The state manual provides that under some circumstances the speed limit may be set below the 85th percentile speed, for cause, but under no circumstances is the limit to be set more than 7 mph below the 85th percentile.

In this case the speed limit was 17 mph below the 85th percentile standard. There was no reason given in the documents; however, the town had heavily lobbied for a lower limit. In my opinion, the limit is unenforceable, if anyone actually challenges it.

I was prepared to challenge it, but, and this appears to be absolutely the norm, the officer did not show for trial (in Massachusetts, there is a first hearing before a magistrate, sort of a pretend court, absent rules of evidence, from which one may appeal for a trial de novo before a judge. It turns out to be quite difficult to challenge a ticket in Massachusetts, it doesn't seem to matter much what the situation is, the trials de novo, for the few people who go that far, are mostly a series of dismissals. I've heard that sometimes the officer shows and there actually is a trial.... but it doesn't seem to be common.

Rather, the corrupt system depends heavily on the fact that most people, receiving a speeding ticket, feel that it is useless to fight it, and besides, they feel really guilty. I received a few speeding tickets when I was much younger, and I always felt shame. Speed kills, after all.

I don't care how much you attempt to justify the situation, what's right is
right. and what's wrong is wrong.

It must be nice to be able to go through life with such certainty. You might be in for a surprise, however, on the day when debts fall due. That person whom you held in contempt might be smiling, as you discover that you failed to examine yourself as carefully as you examined others....


Now, I certainly did not claim that it was "right" to violate copyrights. Rather, I noted what seem to me to be the facts of the situation, and perhaps its seriousness -- or lack of same -- as a matter of comparison. In my book, intention and necessity are factors to be considered when making moral judgements.

It is a matter of public policy that copyrights be established. It might be argued that the rights of "authors" have, however, been overprotected in some cases, and that the effective monopolies that copyrights can create may be harmful to the public interest. But that's a question for the legislators, and perhaps someday we will have a rational legislature. We will, if I have anything to say about it, see www.beyondpolitics.com for a beginning look at some ideas around this.

Truth is truth, and it does not change or waiver to suit the needs of the
moment, or to justify ones actions, or excuse ones behavior, I don't care
how much you want to philosophize or wax eloquent.

Moi?


Licensed Software that costs $8K a copy is a tangible asset as well as a
proprietary asset of the company that paid for it, and theft of a copy of
that asset is still theft, or actually it would be considered grand theft,
which in and of itself is an unlawful act in most jurisdictions,
notwithstanding any tort which would or would not be a civil action totally
separate from the criminal charges involved.

This is utterly insane. Unlawful copying of a license is not theft. If it has become theft, then we are indeed long past 1984, and doublespeak reigns. But, hey, I'm not a lawyer, I merely have some understanding of common law. Is Mr. Smith aware of any convictions as he describes? Or statutes which make the definition he advances? Or other references or citations?


If you don't believe this, then steal a copy of Protel from a Government
Contractor's facility and see how fast the FBI locks you up and throws away
the key and then charges you with a Felony.

What I believe is that it would be wrong to do that. And it would also be wrong to charge one who does it with a felony solely on the basis of a copyright violation. Note, however, that Mr. Smith did not say, "make a violating copy of Protel," he wrote "steal a copy." That could very well be theft; however, were I the attorney for the accused, I'd claim that the value of the copy stolen was about $10, since that is the replacement price for the CD. (Actually, Altium, at last glance, replaces a lost CD for free, but the price used to be $10.) To claim that the theft was to be valued at $8,000 would be to neglect the fact that $8,000 is for a license, the right to lawfully use the program, not for a tangible item like a CD. The thief, in the case described, did not steal or convert the license, making it unavailable to the owner. If he takes the manual, that would be $90 additional. Not grand theft.


Ethically, you're justification simply does not map to reality.

I do think a judge and jury would agree with what I've said. But it appears that "reality" to Mr. Smith is "what I think."


And I did not "justify" copyright violation. I merely noted possible ameliorating circumstances that could reduce the perceived seriousness of the violation and thus the likely penalties. It still would not make it right.

That's like trying to say that you wouldn't have paid for a Cable TV
Subscription anyway, so the Cable Company didn't loose anything by your
using a Cable TV Descrambler to get free Cable TV.

But that's true. Using an unlawful descrambler is, I think, a violation of civil law, and maybe criminal law, but it does not injure the cable company in terms of tangible damages.


That is exactly the same argument that you are stating below. Identical.

Yes, it is.


Well I've got news for you. In this State, it's not only theft (unlawful -
illegal), it's a Felony, punishable by imprisonment (not just a few days in
the local Jail, but a few years in State Prison).

"It"? What is "It"? It would appear that Mr. Smith is referring to criminal copyright violation. Here's a definition on the federal level:


Congress has distilled the crime of felony copyright infringement to four essential elements: (1) a copyright exists; (2) it was infringed by the defendant, specifically by reproduction or distribution of the copyrighted work; (3) the defendant acted "willfully"; and (4) the defendant infringed at least 10 copies of one or more copyrighted works with a total retail value of more than $2,500 within a 180-day period. See 17 U.S.C. 506(a)(2); 18 U.S.C. 2319(a), (c)(1).

Using a single copy of Protel unlawfully would fail to meet this test. However, if one reproduced ten different programs unlawfully, all infringing uses, willfully, and the total retail value were over $2500 -- as it would be if one of these programs was, say, Protel DXP, yes, there could be a possibility of criminal prosecution.

There is also such a thing in federal law as misdemeanor copyright infringement. Let's say that that issue is *complicated.* Originally to show criminal copyright infringement, it was pretty necessary that the person be selling the pirated copies. Then there has been a trend to apply this to "free" distribution, as with Napster, etc. Making a single unauthorized copy for one's own use, I haven't seen a case, though it might conceivably, from what I've read, be prosecuted as a misdemeanor. There must be a profit motive and it is conceivable that this could be alleged, i.e., the person wished to profit by using the program to sell design.

There is a detailed exposition on criminal copyright infringement at
http://www.usdoj.gov/criminal/cybercrime/ipmanual/03ipma.htm#III.B.4.

But that is not the situation in question (at least not felony infringement). And Mr. Smith, I think, ought to look before he leaps, this is becoming a pattern.

Ethical? There is absolutely no question that it is unethical, and I would
bet that it would certainly be grounds for termination at just about every
company that ever bought a Protel license, if you were caught taking the CD
ROM and Access Codes home without permission.

Yes, I'd think so. What made Mr. Smith think that I'd consider otherwise?


Remember, we are not talking about a Protel licensee that allows his
employee to take a copy home and install it with his permission, or at his
request. We are talking about an employee taking a copy home and installing
it without asking.

Mr. Smith is talking about that. I was talking about the general situation, with what he describes being one possible scenario, not a recommended one. There is a principle in Islamic law, and it is generally a principle in western common law as well, which is that "necessity makes lawful the unlawful." I'll hasten to add that the matter of "necessity" is ripe with potential for abuse; whether or not the employee copied that program under color of necessity would be a matter for the consideration of a judge. If the necessity were dire poverty, it would not prevent conviction for an offense, but it might affect the penalty applied. But in this case I don't think there would be any substantial likelihood of a criminal prosecution.


It would be totally futile to attempt to argue any specific points with you
below, since you have already redefined both ethical and lawful behavior to
conform to your own standards of right or wrong, and to justify your own
world view, and if you can't even see or admit to that, there is nothing
that I can say or do that would make you see that or change your mind.

Perhaps if you show me specifically what I wrote that was incorrect? Or that recommended unethical behavior? Instead, you embarked on a polemic tirade, without ever showing that I espoused the causes which you so roundly condemn. Only by *ignoring* specific points are you able to do this....




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