244 lines
15 KiB
Plaintext
244 lines
15 KiB
Plaintext
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Originally composed October 15th, 1991.
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Hello,
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If you are reading this file, it's probably because you got it from
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a BBS somewhere that had a file description something like "Info on how to
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Pirate LEGALLY!" or something. First off, let me state that I view "Piracy"
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as an incorrect term for what I am about to explain. If you were wondering
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if you can exchange files over the modem legally, the answer is YES as the
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current copyright law stands, and in one of 2 ways.
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Now for a plug for my BBS! Call The Great White North File Library BBS
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at 913-842-6900! US Robotics DUAL Standard, over 1.5 GIGS online.
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Ok so much for the shameless plug, but seriously if you have questions on
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how to do any of the things in this file, or just require some explanations,
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feel free to call.
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First, my background. I am a third year law student at a fine Midwestern
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law school, and I specialize in copyright, patent, and trademark law. I
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currently work for a law firm as an intern, and if anything in this file
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gets you in trouble, we would be happy to represent you. I can't advertise
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for our firm here, so you will have to call my BBS and request legal
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assistance if you need it.
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Now on with the show.... Ah Take off you HOSERS! (Had to throw that in!)
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1) The first way, and perhaps the easiest to do, is to make archive copies of
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your software and distribute those for back up purposes. The copyright law
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is unclear on this, but a liberal reading allows you to make up to 2 copies,
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and at least 1. You CANNOT, however, be using more than one copy at a time.
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Your originals MUST be safely tucked away if someone else is using an archive
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in fact it would be better if you gave them the original, and you held and
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did not use the archive yourself. Hence you upload your original to a BBS
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for safekeeping, while maintaining an archive for yourself. The law in this
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area really isn't very clear, and a lot may depend on whether or not the
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license agreement on the original software package is valid. The argument
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againt these licensing agreements (Often known as "Shrink Wrap Agreements")
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is that they are "Adhesion" Contracts. Some states have upheld these
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shrink-wrap agreements, others have not. Therefore, I would not recommend
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this approach unless you are sure that your state considers your purchase of
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software an actual purchase rather than a license.
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2) The second, and more complicated (yet legally sounder) way to accumulate
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and transfer software is under USCA Title 17 Section 109. For those of
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you not familiar with the law, USCA is United States Code Annotated, a LARGE
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compendium of Federal laws, your local law library will have a complete set
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if you want to look this up yourself. I will quote from the USCA in this
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article.
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First, let me state that RENTING software for PROFIT is ILLEGAL, and it
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says so expressly in Title 17. Video games, however, are an exception to
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this rule. This is why you don't see any Software Rental stores. In fact
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it IS LEGAL if, and I repeat IF you get the manufacturer's express agreement
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that you can rent it. That means for EVERY program you would have to write
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the author, company, whatever, and get their approval, which they probably
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won't want to give without a fee. Hence, you probably won't see software
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rental stores until after 1997. (The date of the sunset clause in sec. 109).
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Let me digress into a bit of legislative history behind the 1990
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Computer Software Rental Act passed by Congress. The following is a direct
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quote from House Report No. 101-735, P.L. 101-650 under the Judicial
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Improvements Act of 1990.
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"One of the most important limitations on copyright owner's exclusive
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rights is embodied in section 109 of title 17, USCA. This section incorp-
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orates the so-called "first-sale" doctrine. Under this doctrine, the
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owner of a lawfully made copy of a work is entitled to sell or otherwise
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dispose of that copy and to display the copy publicly WITHOUT (emphasis
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added) obtaining the copyright owner's permission. For example, a student
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who purchases anthology of poetry for literature class (Sounds familiar to
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my undergraduate days!) may sell that copy to a secondhand book store, which
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may in turn sell the copy to the public. A grocery store may purchase
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copies of a video cassette and rent those copies to its customers. A museum
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may displaya painting it purchases from an art dealer.
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Section 109(a) of title 17, USCA, is structured as an exception to the
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copyright owner's section 106(3) right of distribution. Section 109(b)
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is structured as an exception to the copyright owner's section 106(5) public
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display right. These sections do not act as a limitation on the other
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exclusive rights granted copyright owners in section 106, title 17, USCA. For
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example, an owner of a lawfully made copy may not, without the permission
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of the copyright owner (or availability of a statutory defense like the
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special exemption provided in section 117, title 17, USCA for making back-up
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and archival copies) reproduce copies of the work, prepare derivative works,
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or publicly perform the work.
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The "first-sale" doctrine represents an important balancing of interests.
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The doctrine prohibits copyright owners from controlling the terms and
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conditions of further distribution of lawfully made copies of a work once
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the initial authorized distribution of those copies has taken place. At the
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same time, the limitations on the doctrine preserve other, essential rights
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of copyright owners, including the right to authorize public performances.
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Congress has, in the past, resisted proposals to alter the balance achieved
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in section 109, requiring those seeking amendments to make a compelling case
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for change. Proposals to reform the first sale doctrine are neither easy
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nor without controversy. They occur in a shifting legal, technological and
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economic landscape."
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The history continues for about 4-5 more pages which I won't reproduce here
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but if I can find a handy scanner I will scan in and make available on my
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BBS. Congress sums up by sections, so here are the relevant parts.
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Section 102 - Rental of Computer Programs
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"Section 102 amends section 109(b) of title 17, USCA, by redesignating
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paragraphs (2) and (3) as paragraphs (3) and (4), by replacing existing
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paragraph (b)(1) with a new paragraph, and by replacing redesignated
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paragraph (4) with a new paragraph.
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New subparagraph (b)(1)(A) expands the limited exceptions to the first
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sale doctrine Congress made with respect to phonorecords in 1984(renewed in
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1988) to include, as specified, computer programs. As with phonorecords, on
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or after the date of enactment of this bill, computer programs may not, for
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purposes of direct of indirect COMMERCIAL ADVANTAGE, be rented, leased, or
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lent. (Emphasis added) An EXEMPTION for the rental, lease, or lending for
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NONPROFIT purposes by nonprofit libraries and nonprofit educational
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institutions is provided. Additionally, the bill states that the transfer
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of possession of a lawfully made copy of a computer program by one nonprofit
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educational institution to another or to faculty, staff, or STUDENTS (gotta
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plug us students) is EXEMPT.
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Nonprofit libraries are required to affix on the packaging containing
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the computer program a warning of copyright, in accordance with requirements
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the Register of Copyrights shall prescribe by regulation."
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Now for the actual law, what does USCA title 17 section 109 say?
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Section (2)(A) "Nothing in this subsection shall apply to the lending of a
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computer program for NONPROFIT purposes by a NONPROFIT LIBRARY, if each
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copy of a computer program which is lent by such library has affixed to the
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packaging containing the program a warning of copyright in accordance with
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requirements that the Register of Copyrights shall prescribe by regulation."
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A little further down, this may ease your fears a little in case this legal
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theory I have developed and will explain further doesn't hold up, this is
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what section 109 says if you lose... Paragraph (4) .... Such violation
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shall NOT be a criminal offense under section 506 or cause such person to
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be subject to criminal penalties set forth in section 2319 of title 18."
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Now the question is "What do I need to do to qualify under section 109?"
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A few things to be certain.
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1) You need to affix a copyright warning to EVERY piece of software, in the
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case of a BBS I would imagine that means EVERY file available for download,
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and all files that come in as uploads and will later be made available. You
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can obtain a copy of this warning from the copyright office in Washington
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D.C. I am still waiting on them to send me one, so in the mean time I have
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made my own that I feel any court would hold substantially similar to the
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one the Copyright office issues. This is stored as a Zip Comment on ALL
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files available on my system. I suppose you could include it as a text file
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included with all files, but as a Zip comment they are forced to view it. I
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suppose that doing both would be the best. The following is my example:
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<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>Ŀ
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<EFBFBD> The Great White North BBS File Library *** Node #1 (913) 842-6900 <20>
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<EFBFBD> HST DUAL STANDARD v32/v42/bis/ARL -*- Over 1.5 GIGS, Online CD ROM <20>
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<EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>
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By unzipping this file you agree to abide by all copyright laws of the
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United States as found in U.S.C.A., and specifically those sections
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regarding non-profit library check-out of software. Once your checkout
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period is over you must return or destroy this file. If you do not do so
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you will be in violation of Federal Law. If you have any questions
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regarding your legal liability please consult U.S.C.A. or your local
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attorney. Making copies or distribution of this file is expressly
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forbidden by Federal Law. You checkout period is 24 hours. If you can
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use this software please purchase it from your local retailer.
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This may be enough, I feel that it covers all the bases, but I will probably
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edit it slightly to reflect what I receive from the Copyright Office. Sure
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this costs you maybe 1K additional hard drive space per file or two, but its
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a small price to pay to be LEGAL don't you think?
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The other thing that stands out is "Is my BBS a non-profit Library?"
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First off the USCA title 17 does NOT define the term "Library" as you can
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see all my zip files refer to the files section as a "Library". Is that
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enough? Maybe, then again, maybe not, so there are further steps you can
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take. How far you want to go is up to you. The ultimate step would be
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first to incorporate in your state (Or Delaware for that matter) and then
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apply to the IRS as a non-profit organization under IRS code section
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501 (c)(3), it's called a determination letter. Once you got that back, I
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would say that no court is going to rule that you aren't a non-profit
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library if you are deemed so by the IRS! The other thing you can do is
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contact the appropriate state office (usually in the state capitol) and
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ask to be put on their list of private libraries in your state. Just because
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you are a private library doesn't mean you are operating to make a profit.
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As long as you aren't selling software over the modem, you should be safe
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for the non-profit argument. I am taking the approach of getting on the
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list of libraries in Kansas, I have some forms to fill out and send back,
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and it isn't costing me anything. I may later file the letter to the IRS if
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I really think it is necessary.
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"What about returning the software like a book?"
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This is another good question. Must the user who downloads the software
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re-upload it to be considered returned, and must the BBS keep anyone else
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from downloading the same software in the interim? For the ultimate in
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protection you would want to arrange a plan just like that. However, this
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can be downright impracticle and expensive, especially for long distance
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callers. Therefore, I have chosen a 24hour checkout time under which you
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may view and use the program and then either re-upload it, or destroy your
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copy. I make all the users agree to this expressly, so that if they don't
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destroy their checked out copy, they are the ones who face copyright
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liability. Also libraries often have more than one copy of a book, so
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multiple downloads would be legitimate if you have legitimate multiple
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copies. Remember courts look favorably upon those who are attempting to
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stay within the law in the most economical means possible. There have been
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no cases on point, nor will there probably ever be because of the evidentiary
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burden that the company bringing an action against you would be up against.
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"What about Uploads?"
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What do you do if someone uploads say Windows 4.0 to your BBS? First off I
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have a warning when they go to upload that states that if the program they
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are uploading is not shareware, then they expressly agree by uploading the
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program that they are transferring to me the original which they purchased,
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and that they are not using any copies of that original themselves. Think
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of it that same as if I buy a book and donate it to the library. Is the
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library responsible if it later turns out that the book is stolen? or a
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clever illegal reprint? No, clearly not.
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"What should I do if Microsoft or the SPA brings an action against me?"
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First off, it is unlikely that either will bring an action against one
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BBS for what they deem is software "piracy" alone. Usually they are looking
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for "Hackers" or people who copy a program thousands of times and are
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selling it overseas. If, however, they decide to pursue an action against
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you, get a lawyer, and a good one who know about the current copyright laws.
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I talked with legal counsel at IBM and they were unaware of the 1990 changes!
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You are welcome to contact my BBS and ask for legal assistance. Remember
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you are not criminally liable if the decision goes against you under
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section 109. From my experience I can tell you that at most they would
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get you to take their software off your BBS, and "maybe" be able to get
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attorneys fees. As I have said this is a worse case scenario where you
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lose. I don't think you would lose, I think you would WIN under section
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109, then the software manufacturers will go screeming to Congress and
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Congress will remind them that they are overcharging for their software and
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the only way students and some individuals can check out this software is
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to get it from their local library. As the law stands now you are safe if
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you follow the above procedures and attempt to conform to the new Copyright
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law as much as possible.
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I may release updates to this file as any case law becomes relevant, or
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as any changes are made in the law. For the latest information, of answers
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to any questions you have, PLEASE call my BBS at 913-842-6900. And if you
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feel like donating to my LIBRARY, I will be more than happy to take your
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donations or allow you to check out some of the volumes from our library.
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Bob McKenzie #1 @ The Great White North BBS
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913-842-6900 HST DUAL. 1.5 GIGS.
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