179 lines
8.7 KiB
Plaintext
179 lines
8.7 KiB
Plaintext
|
||
The following message was extracted from the Compuserve Programming forum
|
||
on Tuesday, 2 October 1990. It would appear to be a rather important
|
||
topic for those of us in the PC software/shareware/freeware/etc community.
|
||
|
||
Please note that in the interests of clarity, several messages which are
|
||
continuations of the first message have been combined and the intervening
|
||
headers removed.
|
||
|
||
#: 41298 S1/General Info [P]
|
||
02-Oct-90 01:36:57
|
||
Sb: #Dangerous Copyright Law
|
||
Fm: Stephen Haynes 76236,3547
|
||
To: All
|
||
|
||
I am posting this long message here and on other relevant sections to warn
|
||
authors of shareware of a dangerous piece of federal legislation that has been
|
||
passed by the House of Representatives as part of the Computer Software Rental
|
||
Amendments Act of 1990. I tell you this from my position as a member of the
|
||
Proprietary Rights Committee of the Information Industry Association and an
|
||
attorney who represents West Publishing Company on intellectual property
|
||
matters. These comments do not necessarily reflect the position of the IIA
|
||
PRC, although they are also concerned that the legislation is illadvised.
|
||
|
||
Essentially, the legislation proposes to throw under a degree of federal
|
||
scrutiny and regulation all of computer "shareware." In addition, by its
|
||
legislative history (about which more is said below), the House subcommittee
|
||
that considered this legislation completely messed up what we differentiate as
|
||
"shareware" and "freeware," and these definitions are likely to follow the
|
||
legislation (if enacted) into court cases that may arise in the future.
|
||
|
||
The relevant section (Sec. 105) has been passed by the House, but is not in
|
||
the equivalent legislation pending before the Senate, so it could only be
|
||
placed in the final bill by a conference committee. This is not good law, and
|
||
should be opposed by all concerned with the free and unfettered development of
|
||
shareware.
|
||
|
||
Following is the text of the relevant portion of the proposed
|
||
statute:
|
||
|
||
SEC. 105 [of Computer Software Rental Amendments Act of
|
||
1990]. RECORDATION OF SHAREWARE.
|
||
|
||
(a) In General.--The Register of Copyrights is
|
||
authorized, upon receipt of any document designated as
|
||
pertaining to computer shareware and the fee prescribed
|
||
by section 708 of title 17, United States Code, to
|
||
record the document and return it with a certificate of
|
||
recordation.
|
||
|
||
(b) Maintenance of Records; Publication of
|
||
Information.--The Register of Copyrights is authorized
|
||
to maintain current, separate records relating to the
|
||
recordation of documents under subsection (a), and to
|
||
compile and publish at periodic intervals information
|
||
relating to such recordations. Such publications shall
|
||
be offered for sale to the public at prices based on
|
||
the cost of reproduction and distribution.
|
||
|
||
(c) Deposit of Copies in Library of Congress.--In
|
||
the case of public domain computer shareware, at the
|
||
election of the person recording a document under
|
||
subsection (a), 2 complete copies of the best edition
|
||
(as defined in section 101 of title 17, United States
|
||
Code) of the computer shareware as embodied in machine-
|
||
readable form may be deposited for the benefit of the
|
||
Machine-Readable Collections Reading Room of the
|
||
Library of Congress.
|
||
|
||
(d) Regulations.--The Register of Copyrights is
|
||
authorized to establish regulations not inconsistent
|
||
with law for the administration of the functions of the
|
||
Register under this section. All regulations
|
||
established by the Register are subject to the approval
|
||
of the Librarian of Congress.
|
||
|
||
The House of Representatives Subcommittee report (that
|
||
establishes the "legislative history" of the statute), contains
|
||
some even more unfortunate language. I have emphasized by all
|
||
caps those portions I find are most troubling:
|
||
|
||
Section 105.--Recordation of Shareware
|
||
|
||
Section 105 of the bill -- which is uncodified --
|
||
authorizes the Register of Copyrights to record
|
||
documents relating to shareware, to maintain current,
|
||
separate records relating to such documents, and TO
|
||
PUBLISH AT PERIODIC INTERVALS INFORMATION RELATING TO
|
||
SUCH RECORDATIONS. The purpose of section 105 is to
|
||
encourage individuals desiring to permit unrestricted,
|
||
or liberal, use of software they create, to file
|
||
documents to that effect with the Copyright Office so
|
||
that an effective public record will be available.
|
||
Subsection (a) authorizes the Register, upon
|
||
receipt of a document designated as pertaining to
|
||
computer shareware, to record the document and return
|
||
it with a certificate of recordation. Such a document
|
||
could include license agreements and statements that
|
||
the author attaches conditions to the use or
|
||
distribution of a computer program. Documents would be
|
||
recorded under the fee structure in effect for other
|
||
documents relating to copyright.
|
||
|
||
For purposes of this section, shareware is
|
||
computer software which meets the standard of
|
||
originality in the Copyright Act but for which the
|
||
author sets certain conditions for its use and
|
||
distribution. THE COMMITTEE IS AWARE THAT THE TERMS
|
||
"COMPUTER SHAREWARE" AND "PUBLIC DOMAIN COMPUTER
|
||
SHAREWARE" ARE NOT FOUND IN THE COPYRIGHT ACT, AND ARE
|
||
SUSCEPTIBLE OF DIFFERENT MEANINGS IN THE COMPUTER AND
|
||
LEGAL COMMUNITIES. IT IS APPARENT THAT THERE IS A LACK
|
||
OF A CENTRAL CLEARINGHOUSE FOR INFORMATION ABOUT
|
||
SHAREWARE, AND THAT SUCH A CLEARINGHOUSE WOULD AID IN
|
||
WIDER DISSEMINATION OF SUCH WORKS. The Register is
|
||
given wide latitude to promulgate practices and
|
||
procedures that fulfill the purposes of this section
|
||
and also to obtain information -- prior to the "sunset"
|
||
of this Title -- about an important manifestation of
|
||
the creative computer community. Because of the
|
||
different interpretations of the term shareware in the
|
||
computer industry, it will be left up to the individual
|
||
author submitting the document to designate it as
|
||
pertaining to shareware. Failure to so designate the
|
||
document will result in the document being recorded
|
||
with the general copyright records. COMPUTER SHAREWARE
|
||
DOES NOT INCLUDE ELECTRONIC DATA BASES, OR OTHER WORKS
|
||
OF AUTHORSHIP.
|
||
|
||
Subsection (b) provides the Register with
|
||
authority to maintain current, separate records
|
||
relating to the recordation of documents and to compile
|
||
and publish at periodic intervals information relating
|
||
to such recordations. Such publications shall be
|
||
offered to the public at prices based on the cost of
|
||
reproduction and distribution.
|
||
In order to facilitate access to shareware, Title
|
||
I of H.R. 5498 provides, in subsection (c) of section
|
||
105, that any individual recording a document
|
||
pertaining to shareware MAY ALSO DEPOSIT TWO COPIES OF
|
||
THE SHAREWARE AS EMBODIED IN MACHINE-READABLE FORM FOR
|
||
THE BENEFIT OF THE LIBRARY OF CONGRESS' MACHINE-
|
||
READABLE READING ROOM. The nature of the deposit is to
|
||
be determined by the definition of "best edition"
|
||
contained in section 101 of title 17, United States
|
||
Code. Subsection (c) does not affect the mandatory
|
||
deposit requirements of section 407 of title 17, United
|
||
States Code, for computer software that is subject to
|
||
copyright.
|
||
Subsection (d) authorizes the Register to
|
||
establish regulations in conformity with law for the
|
||
administration of the functions of the Copyright
|
||
Office. All regulations are subject to the approval of
|
||
the Librarian of Congress.
|
||
|
||
This proposed legislation is faulty or dangerous because: (1) registration
|
||
need not be by the author, which means that any person can appear able not
|
||
only to register with the Copyright Office, but deposit the shareware with the
|
||
Library of Congress; (2) the Library of Congress will thus be engaged in
|
||
activity (the collection of shareware) adequately performed by the private
|
||
sector; (3) the sale by the Copyright Office of compilations of registered
|
||
shareware is also a task better performed by the private sector; and (4) the
|
||
statute's language completely confuses or states erroneously the nature of
|
||
what it calls "public domain shareware," which we would probably refer to as
|
||
freeware.
|
||
|
||
I sincerely encourage each of you to write your Congressmen stating your
|
||
opposition to this bill, should such provisions make it out of conference, and
|
||
write your Senators stating your opposition and asking that the language not
|
||
be added to the Senate version of the Computer Software Rental Amendments Act
|
||
of 1990.
|
||
|
||
Steve Haynes
|
||
|
||
|
||
|
||
|
||
<EFBFBD>
|
||
|