Law Review Note

[raoulduke]

As I sit here at my unpaid legal internship, my mind wanders back to a thought I first posted about on 68kmla. Those people lack vision to the utmost, so I am hoping there will be more constructive thoughts here.

I am a staff editor on a journal at Rutgers Law starting in a few weeks. It has no obvious relation to computing, but we are allowed/perhaps encouraged to write for journals. My longterm thought has been to produce the first cogent legal analysis of vintage computing. The implications fascinate me for reasons I won't go too far into.

I'm curious if anyone has any specific thoughts or ideas. I know the questions I'd like to ask: Can I legally acquire old software? What if it's been discontinued? What if I don't know if the person selling me a physical medium is the original owner [of the associated license]? Are there exceptions to the DCMA for obsolete media?*

What questions would you ask or what issues do you think are most important - or interesting? Or not important at all?

*There's a lot of misinformation floating around on the net but the short answer here is absolutely not. [Said misinformation largely concerns a 2006 suggestion by the Registrar of the Copyright Office, which was rejected.]

 

[Uniballer]

How long does it take for a copyright to expire after the last-known corporate entity owner disappears? I assume early software will all eventually enter the public domain, but when? I assume, for example, that the copyrights for DEC VMS are being maintained by the current owner, but what about RSX-11M (transferred to Mentec, which apparently has disappeared).

Is the answer different for software copyrighted by an individual than for something copyrighted by a corporation?

What about software patents?

I assume that the "First Sale Doctrine" means that it has always been OK to resell original installation media provided that the seller has removed any installation made from it, and with the understanding that the owner is still encumbered by the original license (whether or not the copyright owner still exists).

 

[Great Hierophant]

I am a staff editor on a journal at Rutgers Law starting in a few weeks.

What is starting, your position or the journal? When you edit law review articles you will have to make sure the meaning of the sentence is clear. You will be doing this often. Some suggestions :

"I am starting a new position as a staff editor on a Rutgers Law journal."

"I am a staff editor on a new Rutgers Law journal which will begin operating in a few weeks."

I'm curious if anyone has any specific thoughts or ideas. I know the questions I'd like to ask: Can I legally acquire old software? What if it's been discontinued? What if I don't know if the person selling me a physical medium is the original owner [of the associated license]? Are there exceptions to the DCMA for obsolete media?

You may wish to cover the DMCA exemption process, the rule-making process, court challenges to the rulemaker's authority and proposed exemptions, exemptions which have come and gone over the three-year period, effects of successful and failed exemptions. You may want to address the issue that an act which may be legal in 2003 is illegal in 2007 and its due process implications. You may wish to examine the necessity argument that one must violate the law by using DMCA-infringing devices to preserve older software. You may wish to consider ex-post facto considerations regarding the potential for outlawing devices like CopyIIPC Option Boards which were not illegal before DMCA.

 

[vwestlife]

As far as selling old software goes, if you have a legally licensed, original copy of a piece of software, you are allowed to sell it or give it away as long as you don't retain any extra copies of it for yourself. There have been legal challenges against this in the past, and today's "cloud-based" software opens up a whole new can of worms, but that is the general rule.

"Abandonware", on the other hand, is a legal gray area. A lot of it successfully flies under the radar, but sometimes abandonware sites do get shut down because of alleged copyright violations, when people get caught distributing "abandoned" software which some company (even if it's not the original one) still owns the rights to, as opposed to software which has is truly an abandoned "orphan work" (for example, Visi On).

 

[raoulduke]

Uniballer: Truthfully, one of my interests is in learning copyright (/IP) law alongside the issue. I haven't taken any classes and I haven't done a lot of research. So this is sort of one avenue for the latter. As to length, it might depend but over 70 years. The first sale doctrine requires (AFAIK) the person selling it to you to actually have a copy of the license (I think). That would mean that you'd have to have some proof of original purchase or something (in theory). In reality I think it's just an unworkable doctrine.

Hierophant: I've always thought there are strong, untested (I imagine, anyway; I'll have to read Psystar again) substantive due process issues inherent in all of this - since (as Psystar argued, though stupidly and in a commercial context) - some of the issues touch on restrictions on the use of personal property.
I'm not sure about "necessity" (since I've only seen that as a term of art in more limited contexts). But the necessity involved is one strong aspect of my interest - that it is implausible to run old machines without (often) violating licensing. I will have to look into CopyIIPC, which ... ah... and there's [procedural] due process.* Interesting - I'll have to look more into it. My gut says that the presence of a product (or ownership of it, rather) and the use of said product (as in after a legal change) are separate issues. However, as I alluded to before, I have always thought they may implicate substantive due process by restricting personal use (a case for which I have by no means researched any overarching precedent).
[Women's Rights Law Reporter; it was co-founded by Justice Ruth Bader Ginsberg when she was at Rutgers.]

And vwestlife: to partial recapitulate, it's my belief that first sale is unworkable. I got The Print Shop** with my IIe 15 years ago... did I get it from the original owner (the original owner of the IIe)? I have no idea. I'm actually not sure who the burden would be on to prove such ownership - if it's on the state/plaintiff, how would anyone ever prove someone did not satisfy said doctrine; if it's on the defendant, you'd need the original receipt or something.
Yeah abandonware really isn't a legal concept per se. However, a lot of contexts exist in which litigation is implausible either because no entity exists to zealously guard IP, or (the most obvious in my opinion being Apple) because there aren't damages (so for instance Apple still has virtually its entire Older Software List freely available on its website; it's hard to argue that people taking its free offerings lead to any damages).

Moreover, even for small damages the costs of litigation are prohibitive enough that nothing is likely to ever be brought for our purposes. But that, to some end, makes it more fascinating since the whole topic is gray area. Psystar is a really amazing case in that regard (because of how brazen they were), but the same litigation would never be brought against an individual working in a noncommercial context; and (at least my first reading of the case suggests) that litigation might fail and thus be expensive to Apple and look bad with them trying to screw over the homebrew crowd (with particular respect to OSX86; in which I also have an interest...).

*Initially I couldn't exactly see where you were going with this (or maybe I still didn't). So I removed part of the post.
**I was actually thinking of Apple Works, but since I have a branded 3.5" floppy of The Print Shop for IIgs, that's a better example - or Lemmings for Mac - something that's clearly the actual product but that I can't remember where I got it from. In a theoretical context it's irrelevant, but in a legal context it is very meaningful (I think).
^ Maybe that highlights both my point about ownership versus use and of substantive due process concerns. Can you physically possess the media without owning a valid license - i.e. can you have the right to the media but not to use it?

Part of the reason I wanted to start this was to try to bridge the disconnect between legal issues and collector issues. I don't think (when I start in earnest) I'll have trouble getting legal input. I am concerned that there be some benefit to the people that might use such legal information, and that it not solely be an academic exercise. That said I am basically doing it for fun and out of curiosity. If there's already a comprehensive survey of legal issues, please feel free to point it out.

 

[Chuck(G)]

Oh, I think stupid legislation, particularly in the case of some states, show the really terrible side of what a bunch of numbskulls can do. Consider, for example, the 2011 Massachusetts law 201 CMR 17.00 essentially puts Massachusetts data conversion services out of business.

 

[raoulduke]

That's an interesting point. I wonder if [state] legislation has directly impacted vintage software?

I word it like that because my instincts say the same problem probably could not arise with copyright. Copyright regulation is a power expressly granted to the federal government by the Constitution. So any attempt by a state to regulate copyright in violation of federal regulation would be unconstitutional and would be preempted by federal law.** Even if it weren't explicit in the constitution, software regulation (as compared with information-regulation) would fall under the interstate commerce power; and even information-regulation probably would anyway - here I'm analogizing from Reno v. Condon.

[Presumably federal laws I'm not aware of grant Massachusetts such authority - and this article actually discusses the prospect that 201 CMR 17.00 preempts state laws pursuant to those (state laws authorized by the) federal laws - http://www.mass.gov/ago/docs/press/2015/ago-ltr-re-dsbna-of-2015.pdf.]

 

[Chuck(G)]

I get a 404 on your link.

As I understand 201 CMR 17.00, it concerns itself with personal information of Massachusetts residents only. But the rub with data conversion is that most of the time, the originator of the medium to be converted doesn't know (or isn't certain) what's on it. And a 9 track tape written in 1980 is almost certainly not encrypted. The conversion service can't accept the job because there might be some personal information on it.

It's a silly law but, from what I've read, the Massachusetts AG's office has been unreasonably inflexible in the matter. As I read it, the law doesn't even address the currency of the information. So, for example, would it be a violation to mail a tape with JFK's SSN? Or for example, if you purchase a used computer from Massachusetts, does the law require you to destroy the hard drive? What about an RK05 disk pack? How could a vendor be sure that it didn't contain personal information?

 

[vwestlife]

I get a 404 on your link.

Remove the ] from the end.

 

[raoulduke]

Chuck(G); I don't know. I read enough of the law itself in the link you posted [sorry about my link; it's because I put a bracket independent of the html tag, sorry] to get a flavor for what it was without actually going into any depth. But there's this idea of the 'dormant commerce clause' trigger when a state inadvertently regulates interstate commerce (or intentionally...). It wouldn't really matter if the residents themselves were all Massachusetts citizens ['state citizenship' has a specific constitutional connotation that isn't worth going into]. What would matter is whether the data protected exists solely within Massachusetts - presuming the activity regulated has something to do with the collection and processing of data. If the activity occurs outside of Massachusetts then it's much harder to make the case that it does not implicate interstate commerce.

I apologize for the explication, but the implication to this thread is that there's almost no validity to state regulation of the issues in this thread - unless the federal government has explicitly devolved its plenary authority to states - both under interstate commerce and copyright [although it's possible I'm stretching the terminology somewhat]. Obviously this also only applies within the US. I know very little about EU or other foreign, or international [or UN treaties, for instance], regulation.

(As to the currency of information issue (I'd have to look at Reno v. Condon again but) I'd think it's basically resolved. Again I'm not sure what federal laws are at play in granting states the right to regulate personal info.)

 

[Chuck(G)]

Ah, okay. I believe that Massachusetts has no business poking its nose into data security issues, particularly with the ham-handedness they've thus exhibitied. If there's a problem, it should be addressed at a federal level, since much of the data security problem area rests in interstate and international traffic. Does Massachusetts propose to arrest a bunch of hackers in Moscow (Russia, not Idaho)?

 

[raoulduke]

If today, any shock they should try to stem,
Instead of landing on Plymouth Rock, Plymouth Rock would land on them.

Anything goes, I guess, although the Constitution and I would seem to agree with you.

 

[Chuck(G)]

There's a big difference between patents and copyright. Patents run a much shorter time than copyright--and can be renewed for an additional term. But even an extended patent pales in comparison to US copyright--95 years for single-author works or 130 years for "collaborative" works. That's the law. If you don't like it, get active and get it changed.

 

[EvanK]

Raoulduke -- I sent you a private message.

 

[raoulduke]

(thanks)

 

[g4ugm]

Random Thoughts from Myself,

Most "abandonware" is abandoned because the owner could not make money from selling it. If there was money to be made from selling it then it would have been listed as an asset of the company and actively sold. So unless some one is making money from abandoned software, or unless it could be sold at a profit, then its probably not worth any one "copyright hogging".

However given the vast rise we have seen in hardware prices perhaps in the future it may come about...
.. and of course if its something where a newer version is actively marketed then folks can claim damages...

 

[Chuck(G)]

Most "abandonware" is abandoned because the owner could not make money from selling it. If there was money to be made from selling it then it would have been listed as an asset of the company and actively sold. So unless some one is making money from abandoned software, or unless it could be sold at a profit, then its probably not worth any one "copyright hogging".

Listed where? Do you have access to any company's list of assets? Do you list all your possessions publicly? And exactly who is supposed make a determination?

Sydex still sells 22Disk, for example--and we do sell it. But we choose not to advertise the fact because support issues for people who don't know what MSDOS is or the difference between a USB and legacy PC floppy dirve escape 90 percent of the population. We do very well in the CNC business, for example.

To unilaterally declare something "abandonware" (something lacking a legal definition) without running down the legal owner and asking is the height of arrogance, particularly when the owner is still around to answer.

Do you think, for example, that MS-DOS is "abandonware"? Ask the Microsoft legal department and you'll be in for a rude surprise.

 

[g4ugm]

Listed where? Do you have access to any company's list of assets? Do you list all your possessions publicly? And exactly who is supposed make a determination?

Sydex still sells 22Disk, for example--and we do sell it. But we choose not to advertise the fact because support issues for people who don't know what MSDOS is or the difference between a USB and legacy PC floppy dirve escape 90 percent of the population. We do very well in the CNC business, for example.

To unilaterally declare something "abandonware" (something lacking a legal definition) without running down the legal owner and asking is the height of arrogance, particularly when the owner is still around to answer.

Do you think, for example, that MS-DOS is "abandonware"? Ask the Microsoft legal department and you'll be in for a rude surprise.

Companies are supposed to list assets , including Intellectual Property Rights in Balance sheets, most of which in the UK are in the public domain, so yes I have access to many of these. With much old software where the original company has been liquidated, then the assets list should also be, in the UK publically available...

Of course you have mentioned the real problem , ergo "Running Down the legal owner". . For "22disk" its simple. For many things it isn't. So for example there was a Software house called TyneSoft which wrote Atari and Amiga software. TyneSoft when bust around 1990 so 25 years ago. It should be on the public record who bought the IPR from the company. I suspect the liquidator couldn't find an buyer and as the winding up is complete the software is truly abandoned. I haven't sen any TyneSoft title on sale for years. I gather in theory, in the UK the rights have actually passed to "the crown". I wonder if "the crown" would respond to a query about it? I doubt they have records after 25 years... To make things more complex the name has been re-used and there is a new TyneSoft who did not inherit any of the IPR from the old Tynesoft.

If I were to sell copies of their games would any one act, again as folks do this (Discretely) on E-Bay I doubt it very much. Years ago I bought a "so called" "Atari Mega DVD" (I think) and it has some TyneSoft games on it. (I looked today, I think the market has moved on and now you get this on an SD Card..)

Even worse are the useful old shareware titles that require registration, but the creator was a "lone worker" who is now deceased and so there is no way to use the software...

As for DOS then that's definitely owned by Microsoft, (I wonder if IBM still have any rights) which is why there are things like FreeDOS things around. I am sure that if I tried selling illegal copies of DOS MS on E-bay MS would be down on me like a ton (or tonne for our European readers) of bricks. Same with old IBM software.

I get fed of telling folks that the reason very old releases of VM are Public Domain is because they have always been public domain. IBM gave them away without any licence or copyright with every Mainframe you purchased. Any thing that is Copyright will remain such for a long long time, and again if I attempted to sell it, pretty sure they would be pretty peeved. But in no way are DOS or MVS/SP what I would call "abandon ware". The owners have produced what they call "replacements" and suppression of the old versions is a part of their business model.

Where it starts to get grey are with things like Atari TOS. The Atari name has been sold and split so many times, I would wager that whoever owns the rights to Atari TOS doesn't even know it. Same with Commodore. Do the folks that have the rights to use the name on the phone own the rights to all the software. Even more interesting is I gather they plan to include "retro games" in the package. So now we are back to "there is money to be made" ......

 

[njroadfan]

The rights holders of AmigaOS is complex, but known. The Apple II community ran into this problem with trying to get WordPerfect for the Apple II and IIgs reclassified as freely distributed. Turns out that Corel doesn't own the rights to it. I don't recall how that wild goose chase ended.

 

[lowen]

Companies are supposed to list assets , including Intellectual Property Rights in Balance sheets, most of which in the UK are in the public domain, so yes I have access to many of these. With much old software where the original company has been liquidated, then the assets list should also be, in the UK publically available...

Of course you have mentioned the real problem , ergo "Running Down the legal owner". . ...

For the TRS-80 stuff it's pretty complicated, and there are numerous threads in comp.sys.tandy about it. Look for posts by Frank Durda IV, as he actually was there and worked for Tandy. More interesting are his tales about how some of the original registration paperwork was never filed on some of the stuff, and on how OS patches and upgrades figure in; technically, each version is a separately copyrighted work (a patched version is a derived work).

One such thread is linked in this thread on these very forums: http://www.vintage-computer.com/vcforum/showthread.php?4797-Tandy-Intellectual-Property-history