Computer underground Digest Sun Oct 11, 1992 Volume 4 : Issue 50

Computer underground Digest Sun Oct 11, 1992 Volume 4 : Issue 50

Editors: Jim Thomas and Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow-Archivist: Dan Carosone
Copy Editor: Etaion Jhrdleau, Sr.

CONTENTS, #4.50 (Oct 11, 1992)
File 1--More Ah, Sordid administrivia
File 2--Senate Bill 893 (Anti-Piracy) Passes
File 3--Anti-Piracy Legisla<tion (S 893)
File 4--Sofware Copyright/License Quiz
File 5--Correction on Clarkson article in CuD #4.46
File 6--Is Cyberspace a "Culture?"

Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are
available at no cost from [email protected]. The editors may be
contacted by voice (815-753-6430), fax (815-753-6302) or U.S. mail at:
Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115.

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COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
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DISCLAIMER: The views represented herein do not necessarily represent
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----------------------------------------------------------------------

Date: 11 Oct 92 15:55:50
From: Moderators ([email protected])
Subject: File 1--More Ah, Sordid administrivia

CuD IS IN THE COMP.SOCIETY USENET HIERARCHY

We continue to receive queries about the change-over from
alt.society.cu-digest TO COMP.SOCIETY.CU-DIGEST. By now, your system
should have switched over. It appears that there are glitches (or
sysad tardiness) on some systems. If your system IS NOT receiving the
comp version, check with your sys ad.

WEEKLY SCHEDULE:

CuD remains committed to a weekly schedule intended to publish about
50 issues a year (with a two week break over Christmas). The recent
twice-a-week schedule is temporary, owing in part to a surge of
material. The anticipated issue on the Software Publisher's
Association (SPA) will be out in about two weeks followed by a second
issue of responses.

SUBMITTING ARTICLES TO CuD:

The switch to the comp hierarchy has led to an increase in inquiries
about submitting articles. A summary of guidelines for longer articles
is available on request and may also be obtained from the FAQ
(frequently asked questions) list provided when requesting a mail
subscription. In general, we encourage all reasonable articles related
to some aspect of "cyber-culture" that have something substantive to
say. We do not publish 2-line "me too" agreements or 1-line "the
previous poster should be shot" flames. We encourage opinions,
debates, news summaries, book reviews, conference notices, conference
summaries, legal information, research summaries or articles,
technical blurbs, or other issues that are of interest to the diverse
interests of computer culture.

MAILING LIST GLITCHES:

We apologize to those on the mailing list for the occasional mailing
glitches (empty mail, garbled subject). The mailing list has increased
by nearly 25 percent in the past two months. We had assumed that the
change to the comp hierarchy would reduce the list, but for every
reader that's switched to Usenet, we've added two who can't access
Usenet. So, we've experimented with a primitive batch mailer that's
not yet perfected. Let us know if there are any problems.

------------------------------

Date: 11 Oct 11 16:29: 34
From: Moderators ([email protected])
Subject: File 2--Senate Bill 893 (Anti-Piracy) Passes

The Senate Thursday night passed a series of Bills that included
S 893, anti-piracy legislation, that criminalizes and creates severe
sentences for anyone convicted under the statute.

The law's language essentially makes it a crime to make copies of
unauthorized software, whether by backup or for distribution on a BBS.
Two provisions seem especially questionable: (1) The provision that
criminalizes reproducing or distributing at least 50 copies of
copyright-infringing software in a 180 day period; and (2) The
provision that criminalizes reproduction or distribution of more than
10 but less than 50 copies of one or more offending programs with a
value of $2,500 or more. Depending on the nature of an offense or
whether it is a second offense, a violator could face a prison term of
up to 10 years. The law seems to target the "hobby pirate" rather
than professional bootleggers. As written, it seems that a user who
possesses an unauthorized copy of Word Perfect 5.1 and backs it up
once every two weeks to tape would violate the "more than ten copies"
provision. The "cost" would presumably exceed the $2,500 threshold.
Or, If a user downloaded 11 different word processing programs from a
BBS to test them before purchase, there is a risk of federal
prosecution even if one of them is purchased.

As with all new laws involving new technology, the scope and nuances
will be worked out in the courts over time. But, this may not prevent
abuse of the law by prosecutors and investigators. There is little
reason to trust in the good faith of prosecutors in alleged crimes
involving new technology (as Sun Devil and other cases demonstrate).
It is hardly unreasonable to create a scenario where one's computer
equipment is confiscated for "evidence" or for a minor offense and
then, if several unauthorized programs are found, to pursue more
serious charges. The wording of the law seems to create considerable
latitude for abuse by law enforcement and for excessive prosecution.
We would guess that, under the new law, a substantial portion of the
computer community has just become criminals.

The law also raises trickier questions. If the sysop of a small
neighborhood BBS has a program on the board, such as Windows 3.1, and
15 people download it, would this make the sysop vulnerable? Has the
sysop actually distributed that single copy? What if a single program
were distributed in a single post over the nets and received by 1,000
people? How about the case where a company's legitimate program, with
serial number intact, were spread to 50 other people by an employee
and then traced back to the legitimate purchaser? Even if the answers
are benign, the potential for over-zealous use of the law risks havoc
for those who, like Steve Jackson Games, ultimately must prove their
innocence to clear their name and have their equipment returned.

The law will likely to little to stifle the bootleggers--those who
profit from resale of unauthorized software. The relatively low
threshold of offense clearly seems to target the casual, "small-time"
computer user and pirate board. It is simply a bad law.

Perhaps it is not coincidental that the Bill's sponsor, Orrin Hatch of
Utah, is from the same state as Word Perfect. It would be convenient
to blame Congress, the SPA, large software manufacturers, or groups
such as the EFF for not taking a strong (or any) stand. In this case,
however, the computer community has only itself to blame. Discussions
with two Senators' aides indicated that IF THEY HAD RECEIVED SOME
REASONABLE RATIONALE DURING DELIBERATIONS, they would have been more
likely to oppose the Bill for further consideration. Senate sources
indicated that the bulk of the opposition came at the 11th hour, too
late to be of significant impact in a highly charged election year.
An aide to Senator Simon, who is normally highly sensitive to
potentially abusive legislation, indicated that the Senator did not
receive a single word of opposition to the Bill until our own call
about two hours prior to the final vote.

If groups like the EFF and CPSR have done nothing else, they have
demonstrated the value of and need for developing a quasi-organized
political constituency for cyber issues. Many of us (CuD included)
assumed that "George would do it." We goofed. If there is any lesson
to be taken from S 893, it is that we should all pay closer attention
to legislation that affects the bulk of the cyber community and not
simply sit back when we have the opportunity to provide input.

The Bill below *IS NOT* the final version, and we are told that there
was some minor last minute changes in wording to reconcile House and
Senate versions. For those wondering if the bill will affect them, we
include in file #4 a "piracy quiz." Take it, then re-read S 893.

------------------------------

Date: 8 Oct 92 12:40:51
From: [email protected]
Subject: File 3--Anti-Piracy Legisla<tion (S 893)

((MODERATORS' COMMENT: The following is not the Bill's final wording.
Some minor changes were made at the last minute. However, it is
substantively the same Bill that is now law)).

BILL TRACKING REPORT

102nd Congress
1st Session

U. S. Senate

S 893

1991 S. 893

AMENDMENT, TITLE 18, UNITED STATES CODE

DATE-INTRO: April 23, 1991

LAST-ACTION-DATE: October 5, 1992

FINAL STATUS: Pending

SPONSOR: Senator Orrin G. Hatch R-UT

TOTAL-COSPONSORS: 2 Cosponsors: 1 Democrats / 1 Republicans

SYNOPSIS: A bill to amend title 18, United States Code, to impose criminal
sanctions for violation of software copyright.

ACTIONS: Committee Referrals:
04/23/91 Senate Judiciary Committee
06/09/92 House Judiciary Committee

Legislative Chronology:

1st Session Activity:
04/23/91 137 Cong Rec S 4837 Referred to the Senate Judiciary Committee
04/23/91 137 Cong Rec S 4862 Remarks by Sen. Hatch
07/25/91 137 Cong Rec D 972 Senate Subcommittee on Patents, Copyrights
and Trademarks approved for full Committee
consideration
08/01/91 137 Cong Rec D 1036 Senate Judiciary Committee ordered favorably
reported
09/23/91 137 Cong Rec S 13465 Cosponsors added

2nd Session Activity:
04/07/92 138 Cong Rec S 4931 Reported in the Senate (S. Rept. No.
102-268)
06/04/92 138 Cong Rec S 7580 Passed in the Senate, after agreeing to
an amendment proposed thereto, by voice
vote
06/04/92 138 Cong Rec S 7580 Senate adopted Specter (for Hatch)
Amendment No. 1868, to make a technical
correction, by voice vote
06/04/92 138 Cong Rec S 7613 Hatch Amendment No. 1868, submitted
06/09/92 138 Cong Rec H 4338 Senate requested the concurrence of the
House
06/09/92 138 Cong Rec H 4445 Referred to the House Judiciary Committee
08/12/92 138 Cong Rec D 1066 House Subcommittee on Intellectual Property
and Judicial Administration held a hearing
09/10/92 138 Cong Rec D 1094 House Subcommittee on Intellectual Property
and Judicial Administration approved for
full Committee action amended
09/30/92 138 Cong Rec D 1246 House Judiciary Committee ordered reported,
amended
10/03/92 138 Cong Rec H 11129 House voted to suspend the rules and pass,
amended, by voice vote
10/03/92 138 Cong Rec H 11129 House agreed to amend the title, by voice
vote
10/03/92 138 Cong Rec H 11196 Reported in the House, amended (H. Rept.
102-997)
10/05/92 138 Cong Rec S 16975 House requested the concurrence of the
Senate

BILL-DIGEST: (from the CONGRESSIONAL RESEARCH SERVICE)
0604/92 (Measure passed Senate, amended ) Amends the Federal criminal code
to impose criminal sanctions for copyright violations involving the
reproduction or distribution, during any 180-day period, of specified
numbers of copies infringing the copyright in one or more computer programs.

CRS Index Terms:

Crime and criminals; Computer software; Copyright infringement; Fines
(Penalties)

CO-SPONSORS:

Original Cosponsors:

DeConcini D-AZ

Added 09/23/91:

Gorton R-WA

FULL TEXT OF BILLS

102ND CONGRESS; 2ND SESSION
IN THE HOUSE OF REPRESENTATIVES
AS REPORTED IN THE HOUSE

S. 893

1991 S. 893;

SYNOPSIS:
AN ACT
To amend title 18, United States Code, to impose criminal sanctions for
violation of software copyright.

DATE OF INTRODUCTION: FEBRUARY 28, 1991

DATE OF VERSION: OCTOBER 5, 1992 -- VERSION: 5

SPONSOR(S):
Sponsor not included in this printed version.

TEXT:
102D CONGRESS
2D SESSION
S. 893

Report No. 102-997
To amend title 18, United States Code, to impose criminal sanctions for
violation of software copyright.

-------------------------------------

IN THE HOUSE OF REPRESENTATIVES

JUNE 9, 1992
Referred to the Committee on the Judiciary

OCTOBER 3, 1992
Reported with amendments, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed

Strike out all after the enacting clause and insert the part printed in
italic
-------------------------------------

AN ACT
To amend title 18, United States Code, to impose criminal sanctions for
violation of software copyright.

* Be it enacted by the Senate and House of Representatives of the United*
*States of America in Congress assembled, *
** That (a) section 2319(b)(1) of title 18, United States Code, is
amended-
(1) in paragraph (B) by striking "or" after the semicolon;
(2) redesignating paragraph (C) as paragraph (D);
(3) by adding after paragraph (B) the following:
"(C) involves the reproduction or distribution, during any
180-day period, of at least 50 copies infringing the copyright
in one or more computer programs (including any tape, disk, or
other medium embodying such programs); or";
(4) in new paragraph (D) by striking "or" after "recording,"; and
(5) in new paragraph (D) by adding ", or a computer program",
before the semicolon.
(b) Section 2319(b)(2) of title 18, United States Code, is amended-
(1) in paragraph (A) by striking "or" after the semicolon;
(2) in paragraph (B) by striking "and" at the end thereof and
inserting "or"; and
(3) by adding after paragraph (B) the following:
"(C) involves the reproduction or distribution, during any
180-day period, of more than 10 but less than 50 copies
infringing the copyright in one or more computer programs
(including any tape, disk, or other medium embodying such
programs); and".
(c) Section 2319(c) of title 18, United States Code, is amended-
(1) in paragraph (1) by striking "and" after the semicolon;
(2) in paragraph (2) by striking the period at the end thereof and
inserting "; and"; and
(3) by adding at the end thereof the following:
"(3) the term 'computer program' has the same meaning as set forth
in section 101 of title 17, United States Code.".
*SECTION 1. CRIMINAL PENALTIES FOR COPYRIGHT INFRINGEMENT. *
* Section 2319(b) of title 18, United States Code, is amended to read as*
*follows: *
* "(b) Any person who commits an offense under subsection (a) of this *
*section- *
* "(1) shall be imprisoned not more than 5 years, or fined in the *
* amount set forth in this title, or both, if the offense consists of *
* the reproduction or distribution, during any 180-day period, of at *
* least 10 copies or phonorecords, of 1 or more copyrighted works, *
* with a retail value of more than $2,500; *
* "(2) shall be imprisoned not more than 10 years, or fined in the *
* amount set forth in this title, or both, if the offense is a second *
* or subsequent offense under paragraph (1); and *
* "(3) shall be imprisoned not more than 1 year, or fined in the *
* amount set forth in this title, or both, in any other case.". *
*SEC. 2. CONFORMING AMENDMENTS. *
* Section 2319(c) of title 18, United States Code, is amended- *
* (1) in paragraph (1) by striking " 'sound recording', 'motion *
* picture', 'audiovisual work', 'phonorecord'," and inserting " *
* 'phonorecord' "; and *
* (2) in paragraph (2) by striking "118" and inserting "120". *
Amend the title so as to read: "An Act to amend title 18, United States
Code, with respect to the criminal penalties for copyright
infringement.".
Passed the Senate June 4 (legislative day, March 26), 1992.
Attest:
WALTER J. STEWART,
* Secretary.*

------------------------------

Date: 04 Oct 92 21:26:21 EDT
From: Gordon Meyer <[email protected]>
Subject: File 4--Sofware Copyright/License Quiz

SOFTWARE COPYRIGHT/LICENSE QUIZ
by Albert Silverman

Introduction

This is the second article in a series on "piracy"--with a reverse
twist. This series currently includes the following articles:
(1) Great Software Licensing Hoax (PIRACY1.TXT)
(2) Software Copyright/License Quiz (PIRACY2.TXT)
(3) Great School Copyright Robbery (PIRACY3.TXT)
(4) San Diego County--Truth Squad (PIRACY4.TXT)
(5) ADAPSO and SPA--Trade Pirates (PIRACY5.TXT)
(6) Aldus--Snaring a Pirate Chief! (PIRACY6.TXT)

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

You cannot reject the computer software industry's attempted piracy of
YOUR legal rights in the handling of your computer software, while at
the same time avoiding committing piracy yourself, unless you
understand the basic applicable laws. Please note that the following
quiz goes somewhat beyond these basic legal principles; hence the
knowledge which is required to answer many of these questions does not
fit the "basic" description. Answer "YES" or "NO," based upon your
understanding of these laws. Although several of these questions have
not been specifically addressed in the courts, the answers (which are
given following the list of questions) reflect a highly probable
decision if the question were to reach the courts. Answer as many of
the questions that you can (or that you can even understand!) before
looking up the answers. Good luck!

___ (01) Do you violate the copyright law by making a backup copy
of a copy-protected program, even though the software publisher
furnishes a second (pseudo-backup) copy labeled "archival" or
"backup"?
___ (02) Do you violate the copyright law by having (as opposed to
using simultaneously) more than a single backup copy of one program
on hand?
___ (03) Do you violate the copyright law by using a backup copy
which you have made instead of using the purchased copy, even
though the purchased copy has not been damaged?
___ (04) Do you violate the copyright law by paying someone else
to make a backup copy FOR you, rather than making it yourself?
___ (05) You have purchased a single copy of a copy-protected
program. In order to make a backup copy, it is necessary to alter the
scheme of copy-protection. However, this alteration cannot be
detected while using the program; apart from the "invisible" altered
copy-protection, the backup copy is identical with the original copy
from which it was prepared. Do you violate the copyright law by
transferring this backup copy along with the original copy?
___ (06) You are licensing the use of a computer program and the
license agreement forbids you from adapting and/or modifying the
program in any manner. Can you be successfully prosecuted for
violating the license agreement if you choose to disregard this
prohibition?
___ (07) A school loads a copy of a computer program which it
owns onto a network for distribution to ten computers for use by ten
students in its computer classroom. Is the school guilty of violating
the copyright law?
___ (08) You are licensing the use of a program and the license
agreement forbids you from using the software on more than one CPU
(central processing unit) at a time. Can you be successfully
prosecuted for violating the license agreement if you disregard this
restriction?
___ (09) You are licensing the use of a program and the license
agreement forbids you from lending it. Can you be successfully
prosecuted for violating the license agreement if you lend this
program to a friend, without charge?
___ (10) Do you violate the copyright law by lending to a friend,
without charge, the original copy of a computer program to which
you own the title?
___ (11) Do you violate the copyright law by copying a single
purchased program to hard disks on several computers within a
business establishment?
___ (12) If you purchase the title to a computer program and the
package contains two otherwise-identical disks, one of which is
labeled "archival" or "backup," do you violate the copyright law by
using both disks at the same time on separate computers?
___ (13) You are licensing the use of a copy-protected computer
program. Two copies of the program are supplied by the publisher,
one of which is labeled "archival." The license agreement forbids
the simultaneous use of both copies on separate computers. Can you
be successfully prosecuted for violating the agreement if you fail to
heed this prohibition?
___ (14) If you purchase the title to a computer program and the
package contains two otherwise identical disks, one of which is
labeled "archival" (or "backup"), do you violate the copyright law by
selling the archival (or backup) disk while retaining ownership of
the other disk?
___ (15) Do you violate the copyright law by possessing a copy of a
computer program when you do not rightfully possess the original
from which the copy was prepared?
___ (16) You are licensing the use of a program and the license
agreement forbids you from making more than two backup copies of
the software. Can you be successfully prosecuted for violation of
the license agreement if you make three backup copies?
___ (17) You are licensing the use of a program and the license
agreement forbids you from making more than two backup copies of
the software. Are you guilty of copyright infringement if you make
three backup copies?
___ (18) You are licensing the use of a program and the license
agreement forbids you from creating a derivative work based upon
the program. Can you be successfully prosecuted for violation of the
license agreement if you disregard this prohibition?
___ (19) You are licensing the use of a program and the license
agreement forbids you from creating a derivative work based upon
the program. Do you violate the copyright law if you disregard this
prohibition?
___ (20) You agree with a software publisher, in writing, that you
will place a copyright notice on the disk label of a backup copy
which you make of the program. Do you violate ANY law (i.e., either
breach the agreement or infringe the copyright) by failing to do so?
___ (21) You purchase a computer program and find, after you open
the package, that there is a plain, sealed envelope containing the
program disk. There is also, printed on a separate sheet among the
various papers enclosed with the program, a license agreement
containing a clause that prohibits you from selling it. The document
of agreement states that the software publisher is retaining the
title to the software. Can you be successfully prosecuted for
violating the license agreement if you sell the program?
___ (22) You are licensing the use of a computer program and are
provided with a 5 1/4" disk and a 3 1/2" disk, both of which contain
the same program. The license agreement states that you cannot use
these two disks simultaneously on different computers. Can you be
successfully prosecuted for violating the license agreement if you
fail to obey this restriction?
___ (23) You purchase a computer program which is recorded on
both a 5-1/4" disk and a 3-1/2" disk that are contained in a plain,
sealed envelope inside the software package. You are not able to use
the 3-1/2" disk and therefore give it to a friend. Impatient to use
the program, you do not open the instruction manual before you load
the program from the 5-1/4" disk into your computer. Later, during
the use of this program, you decide to look up in the manual some
point about the operation of the program. Upon opening the manual,
you find a license agreement inside, which prohibits you from using
both disks simultaneously on separate computers. Have you violated
ANY law by giving away the 3-1/2" disk?
___ (24) You purchase the title to an upgrade of a computer
program but are not required to exchange the earlier version for the
upgraded version. Do you violate ANY law if you sell the earlier
version, for which you no longer have any use?
___ (25) You work for a newspaper and are preparing to write an
article about a particular computer program. Your friend, who is
licensing the use of a copy of this program, makes a copy and gives
it to you for your use in preparing this article. The license
agreement restricts the use of the program to one CPU at a time. Is
either of you guilty of violating ANY law?
___ (26) You are licensing the use of a program and the license
agreement prohibits you from disassembling the program source
code. Do you violate ANY law if you fail to heed this prohibition?
___ (27) You are licensing the use of a computer program and the
license agreement prohibits you from exporting the software to a
country to which the United States bans such exports. Can you be
successfully prosecuted for violation of the agreement if you export
the software?
___ (28) Do you violate the copyright law by renting a computer
program to which you own the title?
___ (29) You have received a free copy of a copyrighted program
over an electronic bulletin board. The operator of the bulletin board
has been given permission by the copyright owner to distribute the
program in this manner. You are also warned in an accompanying
notice that you are not permitted to sell this copy. Do you violate
ANY law by selling the program against the wishes of the copyright
owner?
___ (30) Do you violate the copyright law by making a backup copy
of an unprotected (i.e., not copy-protected) program and lending it to
a friend, without charge, while retaining but not using the original
copy as long as your friend is in possession of the borrowed backup
copy?
___ (31) You are licensing the use of a computer program and the
license agreement contains a clause which states that you must
destroy a backup copy that you have made if you sell the program. Do
you violate ANY law if you sell the program and transfer, along with
the original copy, an exact copy which you made for backup
purposes?

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

ANSWERS

The "Section" numbers referred to in these answers refer to the
applicable portions of the copyright laws.
(01) NO:
Your right to make backup copies of a program under Section 117 is
not affected by the presence of copy-protection nor by the number of
copies of the program which you own.
(02) NO:
Paragraph (2) of Section 117 contains the phrase: "all archival
copies are destroyed." The closing paragraph of Section 117
contains the phrase: "the copy from which such copies were
prepared." The CONTU report that provides the intent of this statute
also contains the phrase: "and to prepare archival copies of it."
Since you are permitted to make more than one backup copy, it
follows that you may have more than one copy on hand at one time.
(03) NO:
The intent of Section 117 of the copyright law is to protect the
purchased copy of the program from damage by mechanical or
electrical failure. This is most easily accomplished by the day-to-
day use of a backup copy in place of the purchased copy.
(04) NO:
The opening sentence of Section 117 contains the phrase: "to make or
authorize the making of."
(05) NO:
Since a program that is "altered" by modifying or removing the
scheme of copy-protection cannot be distinguished in its operation
from the original program from which it was prepared, it contains
all of the information about the content of the copyrighted material.
Hence it may be transferred along with the original copy; in
accordance with the transfer provision of Section 117, it is an
"exact" copy of the program.
(06) NO:
The adaptation and/or modification of a copyrighted work belongs
within the exclusive province of the federal copyright law and
cannot be restricted within an agreement.
(07) YES:
Since the simultaneous use of unauthorized copies in an educational
setting negatively impacts the market for the program, it violates
the doctrine of "fair use."
(08) NO:
In order to use a single program on several computers
simultaneously, you must make copies (either permanent or
temporary, via a network) of that program. Since the making and/or
use of copies is regulated under the copyright law, such conduct
cannot be restricted within a license agreement.
(09) YES:
Section 109(d) permits the one who owns the title to a program to
control its transfer by means of an agreement.
(10) NO:
Section 109(a) permits the one who owns the title to a computer
program to transfer it without the permission of the copyright
owner. Section 109(b)(1)(A) does not prohibit the one who owns the
title from lending the program without charge; rather, it forbids the
lending of software for the purpose of direct or indirect commercial
advantage.
(11) YES:
A hard disk copy is equivalent to a backup copy which is used as a
working copy in place of the original copy. Thus using a single
program simultaneously from several hard disks is equivalent to the
simultaneous use of backup copies. This is forbidden by the doctrine
of "fair use" in Section 107, due to the negative impact upon the
market for the program.
(12) NO:
Since you rightfully own two copies of the program, you do not
violate the copyright law by using these copies as you see fit,
despite the labeling by the software publisher of one of the copies
as "archival" or "backup."
(13) YES:
Since you do not own the title to the program, you must obey any
restrictions imposed by the title owner upon the use of publisher-
furnished copies of the program.
(14) NO:
Section 109(a) permits the title owner to transfer either disk,
without regard to its labeling.
(15) NO:
Mere possession of an "orphaned" copy does not violate the copyright
law, since its intended use may qualify for a "fair use" exception. If
there is no "fair use" exception, the purchased original from which
the copy was prepared may have been destroyed, in which case the
use of the orphaned copy does not violate the copyright law.
(16) NO:
Since the making of backup copies is regulated under the copyright
law, this conduct cannot be restricted within a license agreement.
Since Section 117 does not limit the number of backup copies which
can be made, you are not guilty of copyright infringement if you
make more than a single backup copy.
(17) NO:
Section 117 places no limit upon the number of backup copies which
can be made.
(18) NO:
The creation of a derivative work is regulated under the copyright
law and cannot be restricted within a license agreement.
(19) YES:
Under Section 106, the copyright owner has the exclusive right to
create a derivative work.
(20) NO:
Since matters involving the copyright notice are regulated under the
copyright law, your failure to heed a copyright notice requirement
imposed by the software publisher cannot be prosecuted as a
violation of the agreement. Since you may make backup copies, free
from any requirement to add anything to whatever copyright notice
might exist on the original copy, you do not violate the copyright law
by failing to supplement the copyright notice that exists on the
original copy.
(21) NO:
Since you were able to access the program disk without being aware
of the existence of a license agreement, the execution of the
agreement is defective. Therefore you have purchased the title to
the program, even though the so-called "license agreement" states
that the software publisher is retaining the title. Thus you are free
to sell the program without his permission, in accordance with the
provisions of Section 109(a).
(22) YES:
Since you do not own the software, you are bound to obey and use
restrictions which are imposed upon you by the one who owns the
title.
(23) NO:
You own the title to the software since you were able to gain access
to the program without being aware of the existence of both a
license agreement and the fact that the software publisher is
retaining the title. Any so-called "license agreement" which appears
only in the instruction manual and is not referenced before you can
gain access to the program disk is not a valid document of
agreement. Hence you are free to transfer either one or both of the
disks without permission from the copyright owner.
(24) NO:
Since you are not licensing the use of the program, Section 109(a)
permits you to sell EITHER version of the program without the
permission of the copyright owner.
(25) NO:
Since the making and/or use of copies is regulated under the
copyright law, this conduct cannot be restricted within a license
agreement. You are not guilty of violating the copyright law, since
the copyright law permits the use of an unauthorized copy for
journalistic use under the doctrine of "fair use."
(26) NO:
Disassembly of a program may be required as one step in creating a
derivative work, which is conduct that is regulated under the
copyright law. Hence disassembly cannot be prohibited within a
license agreement. Yet the mere act of disassembling a computer
program does not, in itself, constitute the creation of a derivative
work. Hence you may do so without violating the copyright law.
(27) NO:
The export of software is regulated under federal law. Hence it
cannot be prohibited within a license agreement.
(28) YES:
Section 109(b)(1)(A) prohibits the rental of software, whether or
not you own the title to it.
(29) NO:
You have acquired the title to the software, by virtue of the method
which you have obtained it. Section 109(a) permits the one who
owns the title to a computer program to sell it without the
permission of the copyright owner.
(30) YES:
Section 117 requires that any backup copy that is transferred must
accompany the original copy from which it was prepared.
(31) NO:
The transfer of backup copies is regulated under the copyright law
and cannot be restricted within an agreement. You are not guilty of
copyright infringement, since Section 117 permits any exact copies
to be transferred along with the original from which they were
prepared.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Read all about it in "THE COPYRIGHT GAME, ETC.--A Strategic Guide
for the Computer Software User," by Albert Silverman. ISBN
0-9527435-1-8. 330 pages in nominal 8-1/2"x11" format,
softbound with an attractive cover.

What is the purpose of this book? Replacing the legal Mumbo-Jumbo
with plain English, it provides an all-inclusive, detailed, and
impartial explanation of the computer software copyright laws,
using past court cases for clarification of obscure language in the
written letter of the law. Since there is NO commercially-generated
distortion, it is likely that you will find some surprises; i.e., which
run contrary to the industry's self-serving "interpretation" of the
law. Thoroughly debunked is the industry's attempt to pirate your
legal rights by the use of a phony "licensing strategy." Included is a
detailed and entertaining analysis of several leading Software
License Agreements. In summary, you are provided with sufficient
and accurate information (i.e., the legal FACTS) to permit you to
handle your computer software in the manner intended by the U.S.
Congress, while safely ignoring those industry perversions of the
law which seek to gain for it an unfair advantage--at YOUR expense.
Exposed in great detail is the outrageous software industry piracy of
the legal rights of unsophisticated software users (directed by
unconcerned educational administrators) within the California
public schools. For the first time ever, this well-hidden scheme has
been unearthed (with supporting and incriminating documentation
from my extensive research into the inner educational sanctum) and
is being made public. Although this ongoing effort is particularly
well-organized in California, the premier "computer state," it
blankets the entire nation, leaving no educational level uncovered.

The disastrous result of this exceptionally cozy relationship
between the computer software industry and the California
Department of Education is explained. If you are at all concerned
about the way in which this illicit educational-commercial
"partnership" affects the integrity of computer education in your
public schools and drains away your tax money to line the software
industry's pockets with unwarranted profits, this book is essential
reading.

What will NOT be found in this book? Since its sole purpose is to
ensure that you understand precisely what conduct is required for
your (simultaneous) compliance with federal copyright law and state
licensing law, there are no sermons about your "moral" or "ethical"
obligations. That is, it is only your hard and fast LEGAL obligations
which are addressed. The industry's "moral suasion" is most often
an attempt to get the software user to obey the law; i.e., it is a
substitute for the economically-unfeasible prosecution of small-
scale violations of the copyright law. On the other hand, there may
also be a piratical attempt to make an end-run around the law. That
is, when there is NO ground for legal action against the software
user, the industry may seek to gain its own way, either by shaming
the user with claims of immoral and/or unethical conduct or by the
use of a phony (and usually coercive) "license." This book sorts it
all out for you.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The price of $19.92 (check or money order) includes $4.50 for
handling, shipping by UPS, and sales tax if shipped to a California
address. A street address is required for shipping purposes. Off-
the-shelf delivery from:
INTELLOGIC PRESS
P.O. Box 3322
La Mesa CA 91944
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Any questions? If you want information about the subject matter of
this article, or if you want more information about my book, send me
a message by GE Mail. My GEnie mail address is A.SILVERMAN4.
Or you may write to me at the above address, enclosing a stamped, self-
addressed envelope if you would like a reply.

------------------------------

Date: Sun, 11 Oct 92 16:44:51 -0400
From: [email protected](SUSAN M. ROSS)
Subject: File 5--Correction on Clarkson article in CuD #4.46

In CuD #4.46 (September 27, 1992) File #4 was a reprint of the most
recent Clarkson Closeup with a question about the "CompuServe Case"
mentioned in the "Close-up" write-up. There are inaccuracies in the
description of the case which may be the reason the case sounded like
news to Rob Woiccak -- and, perhaps, others. The alleged nature of the
objectional language was defamatory rather than obscene and the
material appeared in an independent newsletter "Rumorville" a "gossip"
feature about broadcast journalists. The alleged offense was
disparaging comments made about another "gossip" feature called
"Skuttlebut." This was the case in which Judge Leisure ruled that
CompuServe, like a library or bookstore, is not considered responsible
for what it carries. Therefore, CompuServe won its fight to be removed
from the suit. I never learned whether the complaint against the
"writer" of "Rumorville" was pursued further. I believe his name is
Mr. Fitzpatrick. Does anyone know the outcome of the case?

Thank you for letting me attempt to correct the inaccuracies. And
thanks, Rob, for taking notice and suggesting sources of information.
A first paper on my research will be presented at a conference later
this month.

Susan Ross, Technical Communications
Clarkson U. ([email protected])

P.S. Another case about which I'd be interested in additional info is
Alana Shoars vs Epsom, a case I believe to have been about
employer electronic monitoring of an employee or employees.

------------------------------

Date: 11 Oct 92 15:58:19
From: Moderators ([email protected])
Subject: File 6--Is Cyberspace a "Culture?"

The following comments may be of interest primarily to social
scientists, especially students doing research. They derive from
discussions especially with grad students and a professors who have
experienced difficulty in convincing potential dissertation committee
members or editors that cyberspace constitutes a "culture" and is,
therefore, a legitimate topic for research for cultural analysis.
Ethnographers--those who study the meanings of a culture from the
natives' point of view--seem especially vulnerable to the criticism by
outsiders that little in the net-world is of cultural significance.
Although based on ignorance of the nets, this criticism dismisses as
legitimate the intents of potential scholars. These comments are
simply an attempt to provide the initial basis for the question: "Can
studies of cyberspace be cultural or ethnographic?"

The concept of "culture" is one of the broadest and vaguest in use by
social scientists. Whether a given group does or does not constitute a
culture is usually a determination made by the researcher. Although
I'm not convinced that culture is simply anything a researcher says it
is, I do agree that it is an ambiguous concept. At a minimum, a
"culture" includes some identifiable set(s) of norms, language,
expectations, boundary mechanisms, identity formation processes,
entry/exit rituals, and other identifying symbolic artifacts and
social processes that link participants. A culture of "garage sales,"
"bar rooms," "little league baseball," or BBSes would surely qualify
as a culture. As would some specific newsgroups or "the internet
culture."

If we define culture broadly as a complex system of signs and codes,
then the def of Van Maanen and Barley is useful:

In crude relief, culture can be understood as a set of solutions
devised by a group of people to meet specific problems posed by
situations they face in common. . .This notion of culture as a
living, historical product of group problem solving allows an
approach to cultural study that is applicable to any group, be it
a society, a neighborhood, a family, a dance band, or an
organization and its segments.

For social ethnographers, Chicago School ethnography provides the basic
model for how cultural studies of micro-cultures (or subcultures)
within a broader culture might proceed. Named after the University of
Chicago, where anthropological culture methods analysis were applied
to small-scale urban scenes in the 1920s and 1930s, the Chicago
School of ethnography emphasized, but was not restricted to,
participation with and interviews of participants in the chosen
research site. There are some who feel that cyberspace is not only not
a culture, even if it were it could not be studied as one because of
the absence of face-to-face contact.

In my view, the judgment that "Chicago school ethnography" is limited
to taxi-dance halls or hookers in hotels, as it is for many
conventional Chicago school adherents is abysmally narrow. Early
Chicago ethnographers illustrated how documents can be used to
reconstruct cultural processes and meanings (eg, The Polish Peasant),
suggesting that cultural artifacts hardly need depend on participant
observation. More recent Chicago-influenced ethnographers, such as the
"Chicago Irregulars" of the 1960s and their followers, have expanded
the data sources dramatically. Hence, neither the method (participant
observation ((PO)) nor the data source (a face-to-face setting) are
the defining characteristics of ethnography.

However, even if PO were a necessary criterion (which it's not), then
BBS/cyber-related research could certainly qualify. It should also be
noted that the early Chicago ethnographers themselves revised the
then-conventional view of ethnography as defined primarily by
anthropologists as they applied broad cultural studies to a more
narrow urban scene. Changing technology creates and opens up for
analysis new terrains that were not anticipated by the "originals." A
"hacker culture," for example, cannot be studied by hanging out in a
conventional locale requiring f2f interaction, which changes the
definition of PO, which normally presumes f2f interaction.

Cyber-culture (culture that exists in an electronic medium) provides a
number of artifacts by which to establish "the meaning of activity from
the participants' point of view"--on-line interactions (logs),
newsletters and other documents, clothes (t-shirts) and other stuff by
which to "read off" and analyze it. The works of semioticians and
postmodernists expand theoretical and conceptual methods by which to
do this (for those who want to move beyond the past).

Guess if I had to make a short response to editors or others who
claimed that analysis of cyber-culture is not (Chicago) ethnography,
it would be "Get a clue!"

Comments?

------------------------------

End of Computer Underground Digest #4.50
************************************