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Re: Jim's copyright comedy (fwd)




----- Forwarded message from Greg Broiles -----

Date: Wed, 05 Jan 2000 09:37:28 -0800
From: Greg Broiles <[email protected]>
Subject: CDR: Re: Jim's copyright comedy

That might be the case, but lying to ourselves or others (as Jim is wont to 
do) about the current state of affairs is silly. I think it's perfectly 
reasonable to want things to be different; but an honest evaluation of the 
current situation is a strong position from which to begin to make changes. 
Strategies derived from an understanding of the present condition based on 
equal parts fantasy and ignorance is unlikely to lead to anything but 
frustration and failure.

In particular, so long as Jim continues to confuse himself and others about 
what the law actually is, he's and those similarly confused are unlikely to 
make much progress towards changing the law to be what they wish it was. 
He's announcing victory in a struggle he has yet to engage in. If he were 
on the Supreme Court, he could change the law merely by asserting that it 
said something different - but he's not.

There's a common (and incorrect) idea that it's possible for anyone to 
change the law to mean anything merely by asserting forcefully enough that 
it ought to be different, or by presenting the proper clever argument in 
any forum at any time, and that the remainder of the legal system will 
magically reconfigure itself to conform to the new clever argument. That 
only works on TV. The law changes very slowly, for the most part - 
sometimes it looks fast to people who haven't been paying attention to the 
changes, but that's because they weren't paying attention. That slowness is 
generally good, because it gives people a chance to reconfigure their lives 
and behaviors around the coming differences.

Some people are fond of a fantasy they have about the US legal system - or 
sometimes all western legal systems, or sometimes all legal systems - that 
they're based entirely on contract law, and that it's possible (with, say, 
3 hours of part-time effort on the odd weekend while drinking beer) to dig 
down to the basic contract, and find a tricky argument which says, 
basically, "I win and everyone else loses. Ha ha!" This is wrong in two 
important ways - first, there is no deep ur-contract underlying the US 
legal system (or any other, that I've ever heard of). If you want to 
imagine anything down there under the muck of precedent and ritual and 
tradition, it's violence, not contract. Second, there is no court to whom 
one can present the tricky argument; and even if there were, that's not how 
contract law works.

We've all got our own pet superstitions about the world - some people want 
to believe in fairness, others in contract, others in supernatural 
omnipotent beings who are prudish about oral sex - and that's great, but it 
is useful to remember that they're not universally shared, and they're 
mostly about how we want the world to work, not how it actually does. If 
Jim sleeps better at night thinking that copyright is really a complicated 
form of contract, that's great, but that assertion is very similar to a 
child's belief in Santa Claus - e.g., it's harmless if they don't try to 
rely on it too strongly.

----- End of forwarded message from Greg Broiles -----

More weenie whinning...

Where's the flaw:

1.	A contract is defined by standard contract law. It normaly requires
	at least two parties and something of value must be exchanged. This
	means that promises un-fullfiled are not necessarily contracts.

2.	Copyright law is the law that defines who may make a contract
	regarding IP. I admit that the question of what IP actualy is can
	be very confusing. I'm not offering a definitive litmus test.

3.	The agent of the IP regarding a software program is defined
	by copyright law as to what can and can't be in the contract
	only to very broad limits. It also details exceptions.

4.	The sale of an item through a vendor (e.g. buying a software package
	at GlobalComp NWO. down at the local corner mall) is a contract.

5.	The purchaser of that software is bound by the terms of that
	contract at time of sale and transfer of merchandise (the old
	possession is 9/10'ths of the law addage).

6.	If the seller wants to make terms that include hidden or later to
	be revealed license agreements (authorized through copyright law)
	to a purchaser of their product it is within their rights.

7.	The sale of that software binds the purchaser to the legal clauses
	of the license.

8.	That includes any that the purchaser agrees to that may be hidden.

9.	You are not buying the software, you are purchasing the rights to
	use the IP embodied in it. So issues of strict property rights
	don't come into play.

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