Yolanda at SurvPC Discussion List,[EMAIL PROTECTED],Internet writes:
>I would like a definite answer on the question of legality of using old
>software after an upgrade has been released. I've been told both that >it
becomes free to use, and that it's still licensed requiring >purchase, and I
would like to know what is actually true.
This is as definitive as you are likely to get:
1) Copyright in software, like copyright of books and songs and pictures,
lasts a long time. It depends somewhat on whether or not the country has
adopted the Berne Convention or some other international agreement(s)
but *generally* the copyright persists for 50 years or more.
2) Technically, you infringe the copyright if you are using the
software in violation of the original agreement under which it was sold
by its maker. That means technically you can be sued if, for example,
you have copied the software you bought onto two computers when
the licence specifies one, or if you have made two backup disks if
only one was allowed. You could certainly be sued if you sold your
personal copy of the software to somebody else but had kept a copy
of it on your own hard disk, or if you sold your old computer with
programs loaded on it but kept the registered copy yourself.
3) The mere existence of a more recent version of the program
in no way invalidates either the maker's copyright or the terms
of the licence under which the software was originally sold.
THEREFORE, many recyclers of old software are breaking the laws.
HOWEVER:
4) If the company which made the software went bankrupt years
ago, chances are nobody has clear title to the rights. And even if
someone did, they are unlikely to feel violated by an infringement.
5) If the company does still exist (including companies which
were bought out by another company which now owns its assets),
the success of any suit is likely to depend on whether the company
has suffered any material damage or financial loss by illegal use
of the software. I suspect even a litigious type would not sue
somebody for illegal use of Awnings 1.0 if the program now
being sold is Awnings 9.2. If the program can no longer be
purchased, is no longer supported by its makers, and can be
found in factory-sealed packages in your local dollar store for
$2.00, odds are very much against anyone bothering to sue or
winning if they tried.
In short, although not strictly legal plunder, *really* old
software is up for grabs in the real world. I have dozens of
legally purchased programs from the period of 1980-90
which cost me an average of $10.00 CDN because nobody
wanted them after a year or two. Some of them are duds but
others work perfectly well and I have felt no urge to rush
out for more recent versions, even if by magic I were able
to afford them. I also have *illegal* copies of software
which I bought for $1.00 at a garage sale or rescued from
somebody's trash which I would feel comfortable describing
as "abandonware".
I would not consider the last-upgrade-but-one of a widely
used program in that category. I would not copy a program which
still had any monetary value, and would probably suggest as a
"rule of thumb" that a program which has been around long
enough to count as a fully depreciated asset is probably in
that grey area. Here in Canada in the 1980s, depreciation on
software was under the same rules as equipment and took 11
years. These days, tax-men accept that software has a far
shorter useful life in environments where upgrading is
necessary on a yearly basis, and might consider a 5-year
depreciation schedule reasonable in a low-tech small business.
Therefore, anything less than 5 years old still has a monetary
value; so would a program which entitles its owner to free
or cut-price upgrades to the current version--they are in
no sense "abandoned" by the owners of the rights. On the other
hand, I would feel comfortable passing on my illegal copy of
LOGO for the original 128k Apple to anyone who still has
a need for it ... assuming the disk hasn't deteriorated beyond
any use at all.
>>Could we please not talk about pirating software here on this list. >>As
pointed out, this is illegal, and the list could face consequences >>if this
is to continue unchecked. Not to mention what *could* be >>done to the list
owner/hosting company. (sad but true) <sigh> Thank >>you for your
cooperation.
Finally, I must put in my 2 cents on the subject of discussing
the issue on this list. To the best of my knowledge, it is not
illegal to talk or write about matters which may themselves
be illegal. If it were, human nature being what it is, they
would have to put the non-criminals in prison and let the
criminals roam free -- since everyone who discussed a
burglary or gossiped about a naughty neighbour would be
committing a crime.
It is perfectly legal for the software industry to discuss software
piracy, lobby intensively against it, persuade politicians to pass
changes in copyright law which turn public information (for
example, data collected at the taxpayers' expense) into private
property (as in commercial databases), and continue to sell
programs at great profit which do not meet the most elementary
standards for truth in advertising but which come with a
"shrinkwrap guarantee" which is meant to abolish the consumer's
recourse once he/she has opened the package and determined that the
$%^& program is defective. But there is a concerted effort on
the part of the corporate world to persuade us that we individuals
have no right to even discuss the issues freely, on penalty of
a malicious "SLAPP" suit intended to discourage us from
exercising the rights we actually have... and the campaign
appears to be working here, which is a very great pity.
Most people would recognize that the owner of a list, or of a
server on which the list is archived, is NOT responsible for
the opinions (and even less for the acts!) of the people who
subscribe. The list-owner could be *accused* of inciting
others to commit a crime but the accusation would have no
basis in fact unless he or she actually advocated software
piracy. I can be *accused* of possessing stolen goods but I
cannot be convicted without proof that a) the goods were
stolen, and b) they were in my possession; in fact, even
if that proof were provided, unless somebody could prove
that I stole them myself or knew they were stolen when I
acquired them, the odds are very good that I would simply
lose the goods in question (and what I had paid for them)
and, my record being clear, I might be fined and warned
to be more careful in future. Even Micro$ludge could not
sue you or me for discussing piracy, although that would not
necessarily stop them from trying to intimidate us by
threatening a suit, and the most inflammatory things I am
saying here do not begin to approach the illegality of the
"standard business practices" by which that company
achieved much of its commercial success.
To the best of my knowledge, there has not yet been a
prosecution for theft of somebody who offered free downloads
of "abandonware", at least in Canada or the U.S. I have heard of
prosecutions of people who were selling pirated copies of
current software, which is a clear case of theft. I have heard
of sites where proprietary software was offered for downloading,
which were shut down either by the site owner or the ISP
hosting the site when the maker of the software threatened to
sue. There was even a Canadian case in which the owners of
stores which rented software to consumers for evaluation
before purchase were compelled to stop doing this, since it
was clear that the software licences did not provide for this
type of use and that some consumers were keeping copies
rather than buying their own licenced copies. Now, I'm not a
lawyer and no doubt there will be some case law developing
around the "abandonware" issue over the next few years, but
it seems to me there is a clear difference between commercial
piracy and individual use of stuff nobody cares much about.
Frankly, to me it's more like rescuing a useful piece of furniture
from the neighbour's trash (which I have been known to do).
The people who need the 10-year-old wordprocessor are the
same people who are using the 10-year-old, third-hand
computer. The folks who made the equipment sold it to
somebody who acquired full rights in it, including the right
to sell it to somebody else; the folks who made the software
had the clever idea of selling their product to the user while
claiming they retained the right to determine what happened
to it in perpetuity but had no responsibility for its quality
or useability!
Think about it: could an automobile maker these days get away
with selling cars under these conditions:
1) We do not guarantee that this car will work as advertised,
or work at all, and we are not responsible for defects in any
part but the chassis.
2) We are licencing this car to you as an individual; letting
your brother drive it is a breech of the licence conditions and
we reserve the right to take the car back without compensating
you for its loss.
3) If you open the driver's door, you are deemed to have
accepted these conditions and waived all rights of recourse
for any damages caused by our bad design, sloppy production
or inept assembly.
Read the fine print of those software licences, and THEN tell me
who's the thief.
Regards,
Judyth
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