Copyright and the Internet?

[magicyte]

Okay: so I wanted to get this game I haven't played in year or so. Thing is, it isn't available anywhere except for online (AMAZON.COM). I don't want to buy it, so I thought of downloading it. I haven't downloaded it YET- but if it is LEGAL to download, I will. My main question is: is downloading THIS (http://www.mininova.org/tor/643277) illegal, or is it legal (according to the U.S. law)? Ya know, I've a feeling it isn't legal, but just asking...

-magicyte

[Nile]

"Download this torrent!"
From that... I don't think it's legal.

[magicyte]

K. Thanks 4 the input, though I could use more. I won't download it. :)

-magicyte

[techietim]

Good luck downloading it with 0 seeds ;)

[Twey]

I believe it is actually legal if you've previously purchased the software. There's nothing illegal about obtaining the software, just distributing it and/or using it under circumstances not permitted by the license, which, if you've previously bought it, doesn't apply. #include <disclaimer.h>

[djr33]

The issue is licensing, in using it. You can copy your software as well, if you are only using it for backup purposes. Torrents, however, are illegal in that they are distributing the information, though you could argue it if you just were using it to get a copy of what your broken CD had contained and you needed it again, and you had your legitimate license for it.
So, if you want to do it legally using the torrent, you could download it and purchase a license separately, but that of course is unlikely, so you might as well just get the discs. (And there are issues with illegality and torrents for distributional reasons anyway, as I said above.)

For a lot of software, you can just download a free trial version then put in a real serial number and it'll register it for you, after paying on their site, and that is the free software. So, a trial IS the full software, just what you'd get on a disc, but you don't own a full version without purchasing it from them, like you would a disc.

Also, with torrents, there may or may not be some sort of crack/serial in the zip/bundle, so you might be downloading something illegal there, though I suppose that might not be illegal to have, only to use.... odd issues, but overall illegal.

[Twey]

Torrents, however, are illegal in that they are distributing the information, though you could argue it if you just were using it to get a copy of what your broken CD had contained and you needed it again, and you had your legitimate license for it.Yes, the people sharing the data are breaking copyright law by redistributing the software, so for it to be legal you would have to disable sharing what you downloaded. I don't think that the torrent itself is illegal to distribute under copyright law, though, since it contains no copyrighted data — the Pirate Bay argued this in a Swedish court and won it. It might be illegal under the DMCA.
you could argue it if you just were using it to get a copy of what your broken CD had contained and you needed it again, and you had your legitimate license for it.
So, if you want to do it legally using the torrent, you could download it and purchase a license separately, but that of course is unlikely, so you might as well just get the discs.This is magicyte's situation, as I understand it.

[djr33]

Distributing torrents is not illegal; making them is, and using them is. Thus a site that just shares torrents is legal enough, but its behavior is questionable in that it's like a directly for drug dealers: dealing the drugs is illegal, using them is illegal, but just telling you where to get them isn't... but the law may get complex in this sort of situation.


Well, if magicyte has a serial from when he played before (unless that was with a friend, whose software they were using), downloading a torrent just to get the installer back seems reasonable to me, but it won't do much good if he needs to purchase a new license anyway, which is likely shipped with a CD, unless the company offers them directly, but that's unlikely.

[magicyte]

Well, if magicyte has a serial from when he played before (unless that was with a friend, whose software they were using), downloading a torrent just to get the installer back seems reasonable to me, but it won't do much good if he needs to purchase a new license anyway, which is likely shipped with a CD, unless the company offers them directly, but that's unlikely.

Alright. I already have a license for it since I played it on the disk(s) bought by my dad. But I lost those cds, and they got scratched up. Then, hahem, I went to my friend's dad and asked him if he could copy some of HIS cds and let me use 'em (thought it was legal cuz I already had a copy (I paid for one- license, serial, everything) and wasn't going to distribute it to anyone or something). Well, where would the serial number be? On the disk case, or on the disk? I have the disk case in hand. Heh, I guess that the location of the serial number would differ..... Any comments/suggestions?

-magicyte

[Twey]

If you bought the software legitimately originally, you should be able to call them up and explain that you lost the case and would like another serial number. You can also probably find serials and keygens online, although beware of malware in the latter software (legality questionable, as with the downloading).


Distributing torrents is not illegal; making them is, and using them is.As I understand it, making them is also perfectly legal under copyright law. Under the DMCA, creation and distribution are, of course, both illegal.

I am personally of the opinion that a legal system in which a person can honestly break a law by mistake is ridiculous and clearly overwrought. It could do with breaking down and restructuring from simple principles — the whole thing has got out of hand, both in America and in other countries.

[djr33]

Making a torrent that distributes a program illegally is illegal, if in making it you include the program and start the upload. You can make a torrent, but you can't distribute it, and especially can't seed it.
I suppose if you just created a torrent which piggybacked on top of another torrent that existed that wouldn't be illegal, in that you had nothing to do with the original file, or if you were somehow able to setup a torrent that pointed to a seed that already existed. (Of course in this case you could arguably be doing something illegal in the sense of copyright infringement for the original torrent creator or host that is seeding the file. That's amusing.)

Magicyte-- if you do have a serial number (you'll have to figure it out... it can be anywhere in what you bought or in an email from the company, etc.), then you can legally use that with another copy of the program.

What you own when you buy software is two things: the physical medium on which it is sent (the CD), and the license. You do not own the software, but only have rights to use it. So you still have your CD (and not someone else's, unless they want to give it to you), and you have your license. No end user really owns the software (though distribution is illegal) so if you can find it and use it with your existing serial number, it's fine... sorta.
However, you would probably have a strong defense if anyone cared, because it is legal to make backups. Thus a torrent may actually be legal if it is only used to back up software. That's not foolproof though, and in short pretty much anything you do with torrents is probably illegal, at least to someone (and the rest would be figured out in court).

All legal technicalities aside, if you do find the serial number and do download a torrent, then there's very little chance anyone is going to care, as long as you aren't doing anything else too (like downloading other files).

In the end, the legal issues usually fall upon those who are uploading, not downloading. (Though it's not unheard of for just an average user to have some sort of legal consequence, and also using torrents is both uploading and downloading-- that's how the system works-- download it and upload the parts you already have to the other users on the network.)

The simplest way to look at all of this is: are you avoiding paying money? If so, you're probably doing something wrong. If you have already paid and don't want to pay again, though, that's more complex and likely that you have a reasonable solution without paying again.
So if your intent is to get the game for free, don't do it. If your intent is to restore the game you already paid for, then that's a lot "less illegal" if it is at all.

Copyright law is a mess of technicalities, loopholes and confusion, but one of the rules of thumb is to just not do it for financial gain (or instead of financial loss [payment]).
In terms of media use, you are welcome to use anything in a personal project, like a little kid drawing a picture of Superman. No one is going to sue the kid. But if that kid starts selling that art, then you can be sure someone will stop by and tell him to stop.

In general, people care about money, not technicalities. (Unless, and this is the case, some laws rely on some sort of enforcement, so if too many people are let alone when they steal something copyrighted, the copyright actually begins to lose value in some legal sense, so enforcement is necessary in order to keep it copyrighted fully, at all. But in your case you're certainly not doing anything that would, alone, make any significant difference to the company, just one person copying a file in a legally "gray area" fashion, without cheating them out of any profits.)

[magicyte]

Meh, I don't think I'll download it. It's too much trouble. If it's even one bit illegal, it IS illegal, and thus I shouldn't do it. As the saying goes (or whatever), "One tare will ruin the crops of wheat." In this case, one bit of an illegal property will disallow me to want to download it. I've still one question: Why doesn't the government do anything about these websites which distribute illegally copyrighted files? Well, I mean, they could be doing it right now, but I dunno... the website I went to let me try to download it, but then I thought it might be illegal, so I stopped...:confused:

-magicyte

[djr33]

For the reasons above, it isn't technically illegal-- it's just illegal to use them. (At least it's illegal to use them in some ways... all the more reason it's complex.)

[Twey]

Making a torrent that distributes a program illegally is illegal, if in making it you include the program and start the upload. You can make a torrent, but you can't distribute it, and especially can't seed it.But a torrent file doesn't contain the program. It merely points the way to a tracker, which in turn points the way to other peers who are offering the actual data. Distributing a torrent is no more illegal than my linking to http://www.allofmp3.com/.

[djr33]

You're arguing a misleading technicality. By creating a tracker to a file, you must know that there is a file. If there is a file, someone put it there. And that is rarely not connected. If you want to start a torrent, you don't just make a tracker and the files appear-- you make a file appear and a tracker for those files. If in some odd way you are able to create a tracker without actually doing anything to enable the file itself, then that is not illegal, but that is not the reality.
Also, in doing so, even if you did not, somehow, create the file, you are fully aware of your actions, and this falls outside the gray zone of "oh, we don't know what people put on our network" that is a frequent legal defense.

[jscheuer1]

I've only loosely been following this thread. However, if you already own the right to use the software, it doesn't matter how you obtain a usable copy of the software. Only those with no right to use the software are are committing a crime when they obtain it via torrent or via any other means.

As far as offering software via torrent goes, if the software requires a purchase of a license for legal use and the torrent comes with a free license (as many torrents do), then the ones offering the software are committing a crime, as well as those who download and use it without a legally purchased license. But the legal license holders who download and use the software are perfectly within their legal rights, as long as they are using the software in accordance with the license they purchased.

So if your original license allowed for use on one machine and copies for backup purposes, as long as the use you put the torrent obtained copy to doesn't violate that, you are fine.

[Twey]

Interesting. John, are you saying that it would be legal to post a piece of proprietary software so long as a license is posted with it forbidding the user to download it if said user has not previously legally bought a copy of the software?

[djr33]

as long as they are using the software in accordance with the license they purchased.Not if that license, as nearly all of them do, says that you cannot redistribute said software.

Twey, no. According to what John posted, yes, I assume, but that is not correct.

You do not have the right to do anything with your software, except use it (and to some degree for PERSONAL backup, for YOUR license only), but you do not have the right to redistribute it. If you copied your CD for a friend who had a license that might work out, but if it's on the net, that's not ok and it is up to the distributing company to decide if they are ok with you doing what you are with their property-- you own the license and the media, not the software, and you may not at your discretion give it to others.

To be clear, this is not how I feel about all of it or necessarily logical, but that's how the law goes. Depending on the agreement for each individual program/company, this may differ slightly, such as open source programs, but for the most part professional high end applications (like games, graphics apps, etc.) will not have any light terms in their user agreement.

Read the fine print... that's what it says when you install the programs.

[jscheuer1]

I never said (or at least never intended to say) that offering for download was legal under any circumstances that I mentioned or even under others that I did not, though it may or may not be.

I only meant to state that if you are already a legal license holder, for example allowed to have copies as backups and to run one live installation on one computer at a time, you are free to download copies from anywhere.

[djr33]

That's a very strange legal issue, but that's like saying "If you already paid for a year's membership, you can steal, because you aren't really stealing." (Let's say you bought unlimited apples at your local grocer-- if you just steal them, then that's not really going through the right process as would be swiping your "apple card.")

You may be right, though, that you're less likely to get in trouble, but I don't think it's any less illegal at the most technical level.

Using the files is another issue, but the downloading itself is equal for anyone involved, regardless of whether they have a license because that file is made illegally.

[jscheuer1]

This is different than fruit (your apple analogy), as this is intellectual property. There is no physical item to steal. As long as you have the right to use the property, since its bits and bytes have no intrinsic value (actually very, very little value, and it is not these electronically charged 0's and 1's that are at issue) in themselves, it doesn't matter where you get the data to which you are already the rightful user.

In real life though, I think that very few if any users of these torrents or of other peer to peer services really have the rights to all of the content that they download. So what we're talking about is rather a moot point in most cases.

There are other issues though.

For one, if I buy - say a CD, I'm within my rights to make copies. I may even give one of these to a friend or passerby on the street. If a peer to peer network does the same thing at no charge, how is that really any different than what an individual does in this regard, other than the matter of quantity? Copyright law tends to follow significant harm though. If I personally give you a copy of a CD, there is negligible harm. If I setup a server where millions of copies may be distributed, a case could at least be made that I'm cutting into someone's bottom line in a significant way.

Then there are issues which revolve around fair pricing. There are currently no laws (that I'm aware of) governing that other than anti-trust/monopoly (which applies only to a specific kind of price gouging), and the tacit law of "what the market will bear" which is unwritten and often abused to the detriment of the seller who seeks to take advantage of it by raising prices. I think that is what has recently decimated the recording industry.

[djr33]

There is no physical item to steal.It's intellectual "property," and something to steal all the same. Regardless of form, it's still illegal to steal it. The cumulative damage is less, but you still have obtained something you did not have (assuming your CD being broken is a reason for this-- if it's not broken then this is irrelevant), and companies have the rights to stop distribution of, for example, a free trial. Just because you want that doesn't mean you can still download and use it after they deem it to have expired.

And I don't agree-- I believe it is illegal to give a copy of a CD to a friend. People do it all the time, but it's a mild form of stealing, just like peer to peer networks are a major form of the same-- it's not about quantity in whether or not it is illegal, but whether you are stealing at all. If you're worried about getting in trouble, though, that's entirely different and you probably won't have any record companies going after you for copying one CD for one friend, but will if you distribute it to thousands on a peer to peer network (if they have the chance).

In the vaguest sense, perhaps there is a lack of laws governing much of this, but the user agreements for all major software will make it very clear that you, as the consumer, have no rights other than just using your software. It is illegal to reverse engineer it, EVEN just for personal use.

[jscheuer1]

I'm not worried about the ethics of copying one CD, we can agree to disagree on that. However, as far as intellectual property goes, yes a distributor may decide to discontinue distribution, but if I already have the rights to use the property, I doubt that I can be held liable if I obtain it via some unauthorized channel. It would be difficult to prove where I got it, and if I have the right to have it, it shouldn't matter.

[djr33]

My discussion has nothing to do with ethics. Copyright law is annoying and illogical in many ways (though the result is somewhat reasonable for all involved, so it's not a complete loss).

Copying a CD is not particularly ethically wrong, but it IS legally wrong. If you're just talking about ethics, then I have no problem with what you're saying-- but unfortunately ethics don't match the law in many cases, though perhaps the law would have a kinder response to something more "ethical" in breaking the law than something that is not.


It would be difficult to prove where I got it, and if I have the right to have it, it shouldn't matter.That it is difficult to prove is evidence that it matters where you got it-- you probably would not be held legally responsible, but it is still as a technicality illegal.

Consider shopping. If you break into a store after it's closed (causing no harm and locking up as you leave) and put the correct change near the cash register, so that the financial situation is the same as if you'd bought it during business hours, then you still have committed a crime, which is defined in the breaking and entering and also in your self-defined "purchasing" which is not part of that store's TOS, so to speak.

A program is the same way-- by downloading it, you are obtaining it through an illegal process (not righted by the fact that you already have rights to it, at least not in the nature of the illegal process, but perhaps in an ethical sense and cumulative sense), and you are using the software in a fashion not allowed by its distributor.

The cumulative result is about the same as just using your own CD, but the process is not; in the eyes of the law, it does matter what process you use, not just the result. If the results justified the means, then the legal system would be very different. For example, torture would be allowed, at least if the person is found guilty: torture a man until he admits to murder and there's the result; on the whole it is about right-- he is guilty and should be convicted; but in the process it is illegal and outside of the methods allowed by the system (the governing body, much like the company that writes its TOS/EULA).


Note: this discussion is reaching into technicalities and issues that are not really relevant in many ways. Copying a CD for a friend is basically just fine and its very unlikely that you would ever get in trouble, but looking purely from a legal standpoint, the above argument holds true. From a practical standpoint, it may be irrelevant. But, hey, that's what the FBI warning says at the beginning of movies-- copying is not allowed and thus if you copy it you will be investigated by the FBI. Does it always happen? No. Could it legally? Of course.

[jscheuer1]

I think your new analogy is also flawed. There is no B & E when I download a file. This is more like - say, a thief has stolen my car. I have a spare set of keys. I find my car parked outside a store, get in and drive away. No crime on my part.

[djr33]

But that's a crime, stealing the car. The end does not justify the means in the eyes of the law, and in any of the relevant analogies, your or mine, and in the situation of software, the means is illegal.
Your opinion is irrelevant in the eyes of the law; you might not press charges, but others might; and the police could, for the sake of the general community, at least put pressure on you to do so or do so themselves (I'm not sure how that law works, but I know it exists, to some degree, like for a murder-- you can't ask that charges not be filed in some cases at least).
And in the case of software, likewise, there is no relationship between the pursuit of charges and the illegality of the actions. The act is illegal, plain and simple-- the result from that may or may not result in charges and possibly a conviction.


As for your analogy with the car, though the result appears the same on the surface, there are also minor issues-- they would have used your gas, the car would be slightly worn, and there is the possibility that they could have gotten into an accident-- yes, the results show basically no change from the original situation, but it is illegal because it could have caused a change and because it is not their right to just take your car, even if you don't notice.

[Twey]

John was, I believe, putting the downloader in the position of the person whose car was stolen. It's his car in the first place: if he loses it and then finds it and takes it back, it's not stealing from the thief, and not a crime.

[djr33]

Oh, yes. I misread that. However, the situation is different-- the thief stole your car-- no one stole your disk (you lost it, or it broke).
Additionally, if you were to have that spare set of keys and go to take the car back and the thief were to try and stop you, and you hit him to get your car back, it would be assault, and you wouldn't have the right to steal it back from him-- you'd have to get the authorities to do that. I don't think, for example, you could go into his garage to get it.
So, again, the ends don't justify the means-- it may be your car and he may have stolen it, but you can't break into his garage to get it back, even though it is your car in the first place.

[magicyte]

I don't think, for example, you could go into his garage to get it.

Just saying, if that were a real-life situation, that would REALLY suck... If the theif had his garage open, you had the keys to your rightfully owned car, and the theif is on vacation, why can't you take something which is YOURS back? That's not right... Why is that illegal (though you didn't say that... you said 'break into')? (This is real-life situation, not a metaphor w/ downloading- cuz technically, downloading something that wasn't actually YOURS (you just had something like it), it would be illegal. That's stealing...

-magicyte

[djr33]

You can't enter his property without permission. As the old saying goes, two wrongs don't make a right. If you use any illegal means to take it back, that is still illegal, regardless of your intent.
In a practical situation, you would not end up in trouble because he would have to pursue legal charges against you, nothing a sane person would do if he had just stolen your car.

[jscheuer1]

It was never the thief's property.

[djr33]

It was not, but it is still a problem in the definition of stealing. You can't punch someone who punched you, either. It's not how the laws work. This is abstract, though and confusing-- but if you do something illegal, then it is still illegal, regardless of why. If it is illegal for me to download it (having not purchased it), then it is for you (having it already).

[jscheuer1]

If I were to steal something else from the thief, then we would both be thieves. But if I am only taking my own property, it is not theft. If I'm only downloading my own property it is not theft. It's not the downloading or the taking that's illegal, it is the taking or downloading of something that doesn't belong to you that's illegal.

[djr33]

If I'm only downloading my own property it is not theft. It's not the downloading or the taking that's illegal, it is the taking or downloading of something that doesn't belong to you that's illegal.It is not your property and you do not have the right to self-define its distribution-- you own a license to use it only in the context they define.
Secondly, it IS the taking that is illegal. If you run a red light, it is illegal, even if you have a strong excuse-- arguably the charges may be dropped (let's say there was an explosion behind you), but it's still illegal to do it. Laws don't fluctuate in context. Their consequences may vary, though.

You can believe what you want, but I suggest reading an EULA at some point if you really care.
http://www.adobe.com/products/eulas/ Read any of them, just the first couple paragraphs in English that tell you you have no rights aside from whatever they choose give you. Thus, you pay them money, they tell you what you can do with the software. Individual companies may differ, but it's certainly legal to restrict downloading another copy of the software, within such an agreement.

[magicyte]

You can't enter his property without permission. As the old saying goes, two wrongs don't make a right. If you use any illegal means to take it back, that is still illegal, regardless of your intent.

That sucks... :( Though I suppose stealing a car is a more worse crime than getting on to someone's property w/o permission (just as there are worse kinds of murder or w/e (ex. first degree, second degree, etc.))


In a practical situation, you would not end up in trouble because he would have to pursue legal charges against you, nothing a sane person would do if he had just stolen your car.

Ok, so in this particular case, I wouldn't get in trouble for breaking the law, right? Though that is based on ethics (so I am thinking), but I barely know what ethics is!! :D

-magicyte

[djr33]

Considering you'd be among many being prosecuted if something did happen (companies don't just randomly sue any one particular individual), then you might get caught up in the whole mess. But if they really looked at your intent, I doubt it would matter.
In the end, just create a backup CD of the software (which as far as I know is always legal) as long as you only use it for that single license you originally purchased. Of course that'll only work for new software, in case you break any other CDs (or lose them).

[jscheuer1]

The written law is one thing, the courts another, but are they? It should be obvious that where I've been coming from I believe not. The law on the books is one thing. But any given action by any given individual is only legal or illegal as determined by a jury of their peers, as laid out by the constitution. At least that's the way it works in the USA, for the most part. So much so that even if a given action may violate the letter of the law, if it doesn't violate the spirit of the law, especially if there is precedence, but even in some cases where there is not, charges will never be filed, much less it ever coming to trial.

That, I submit, is the law, at least where I live, and I am grateful for it.

[djr33]

That's practicality or permissibility-- not legality. But now it makes sense.

[jscheuer1]

The law is the law. The fact that you (apparently) think that the law is only the statutes . . .

Anyways, I'm not a lawyer. However, I'm pretty damn sure that the law works as I've outlined. If you have conclusive information to the contrary, I'm more than willing to entertain it. We were talking about legal, weren't we?

But even so, can you point to a specific statute in a specific jurisdiction that states conclusively that a particular type of download is illegal regardless of the individual who downloads it?

[djr33]

It's not about it being disallowed, but rather that the EULA gives you no more rights to do ANYTHING (and it says that clearly) than what they specifically allow-- and I'm pretty confident that no EULA allows getting a copy by torrent.

[jscheuer1]

I had written:


I'm not precisely sure what a EULA is, though I have a very good idea. And I am fairly certain that it cannot override state, federal or local laws, not to mention state federal or local law enforcement.

But I deleted it, because I wanted to add that I'm not aware of any EULA that specifically prohibits obtaining a copy of the licensed software via any particular means.

[djr33]

It doesn't specifically prohibit-- it does not allow. It says explicitly that your only rights with the software are included in the EULA and nothing more.

[jscheuer1]

It doesn't specifically prohibit-- it does not allow. It says explicitly that your only rights with the software are included in the EULA and nothing more.

Huh? So, it says you may use the software, and copy it for backup and restore purposes. It doesn't restrict where you may copy or restore from.

Honestly, no EULA is intended to restrict licensed users from obtaining and running the software. And I doubt that few if any contain language that would specifically restrict where the EU can obtain a copy of the software from, though some may. In any case, LA's are not meant to prevent licenced users from running the software. They are meant to limit liability on the part of the manufacturer and to prevent redistribution to unlicensed users.

[magicyte]

Okay. I don't want to download it. It's too risky. You guys can keep on having a conversation, but I don't want to download it. Thank you all.

-magicyte

[jscheuer1]

Okay. I don't want to download it. It's too risky. You guys can keep on having a conversation, but I don't want to download it. Thank you all.

-magicyte

That's silly, or at least your reason. I'd be leery of it though because I wouldn't want to get a virus or a trojan.

[djr33]

Magicyte, it's your choice, but don't not do it because we're being so picky. We're arguing the fine points of the legal system, most of which might not apply as they do in a very technical sense in real life.
Regardless of whether it is or is not legal, the odds that you're going to get in trouble for it are about the same as winning the lottery (well, maybe a LITTLE higher).