Technology and The Law: How informed are the decision makers? - Page 1
Forum section: electronics / general

author: Brumby
author_rank: Unknown
timestamp: April 28, 2018, 02:54:40 am
content: Writing the law is one thing, but applying it to the real world is fraught with booby traps and minefields ... as well as just plain exploitation - whether valid or not.This is a subject that Louis Rossmann has addressed on more than one occasion - from the absurd claim by Apple that by adding a bodge wire to bridge a broken trace he is turning a MAC into a PC, to the fundamental difference of software and licences...Are these examples of the decision makers not being competent enough in a field to judge the merits of the arguments presented - or by those presenting the arguments not being thorough enough?What is it like in your part of the world?

author: Halcyon
author_rank: Unknown
timestamp: April 28, 2018, 03:21:09 am
content: I think the biggest issue here is that companies have essentially had a free run for far too long and have becoming accustomed to writing ridiculous and in some cases illegal clauses in their licensing agreements. At the end of the day, regardless of what the product manufacturer forces you to "agree" with, in most cases, it's not worth the paper it's written on and in some cases either isn't enforced or is unenforceable.In some countries, consumer laws have started catching up, but as with most governments, things move slowly.As an example, in Australia, EULA's and other licensing agreements are treated the same way as an ordinary contract. By law, a contract must be fair and that comes down to how "transparent" the clause or contract is. This transparency means that the clause must be:Expressed in reasonably plain languageLegiblePresented clearlyReadily available to any party affected by the termIt has been successfully argued that a EULA containing (for example) 30 pages of largely "legalese" is not "expressed in reasonably plain language" and it not "presented clearly".A court will apply the "reasonable person test", however what is reasonable might not always be in favour of the consumer.We're going into largely uncharted territory, but if I were a betting man, I would say that a court would find the example of fixing an Apple with a bodge wire and magically transforming it into an entirely different product would not be considered a reasonable argument. The same mentality applies if I buy a Toyota and fit after-market wheels to it, it doesn't suddenly become "not a Toyota".As an end-user, I apply common sense. As I mentioned in another thread, if Ibuya product (not rent, subscribe or otherwise pay an on-going licence for), as far as I'm concerned, I own that product. Provided I use it in a private capacity and it doesn't effect anyone other than me, I'm free to do whatever I want with it. I don't care what the EULA says and I have no problems breaching it's terms if I consider them unfair. A classic example is music: If I want to convert a CD to FLAC, MP3, WAV etc... to play in my car or on my phone, then I'm going to do so (as a bonus, the law in Australia allows me to do that). If I buy a computer which comes with Windows 7 with a legitimate licence key, I can install it on whatever single computer I want on a perpetual basis even after I get rid of that original machine. I purchased the software, therefore it's mine. I'm not "borrowing" it off Microsoft.

author: Brumby
author_rank: Unknown
timestamp: April 28, 2018, 05:00:02 am
content: Quote from: Halcyon on April 28, 2018, 03:21:09 amWhile that is certainly an issue, my concern here is that when a case is, say, brought to court, that the judge presiding can make an informed ruling.For example - in the matter of the bodge wire. Apple made the claim that adding this to a MAC turned the device into a PC. Is accepting this as true a shortcoming with the judge or a failure of the defence to rebut?The more I look at this, the more I wonder if the defence was simply not expecting such a ludicrous claim to even gain traction. It is certainly one that could be entertaining to debunk - but to do so to the satisfaction of the court is the question.What level of argument would be needed to counter the "Believe everything we say because we are Apple" credibility that a big, confident corporate presence puts into the courtroom? How would you present such an argument?

author: Halcyon
author_rank: Unknown
timestamp: April 28, 2018, 05:16:22 am
content: I have no doubt whatsoever that some judges and magistrates are completely out of touch with reality. For example, we used to have a magistrate in Sydney who was publically anti-Police. The vast majority of her cases were either dismissed or received light sentences, well and truly below community expectations. Then if the defendant was Aboriginal, look out! It was the fault of the Police for locking him/her up. Thankfully she has since resigned.But in fairness to this argument, Eric Lundgren pleaded guilty to the charges brought against him. It seems that he was even pressing his own discs (through a third party) which gave the impression that the discs he was selling were genuine, when they were not. Can you really blame Microsoft for that?

author: Brumby
author_rank: Unknown
timestamp: April 28, 2018, 05:22:25 am
content: The actual pressing of discs isn't an issue for me, if it contained freely accessible content ... but if he used Microsoft branding - then, yeah, he wasn't being smart.

author: Halcyon
author_rank: Unknown
timestamp: April 28, 2018, 05:27:41 am
content: Quote from: Brumby on April 28, 2018, 05:22:25 amI think he was also using Dell branding on the discs. Not having seen one, I can't confirm, but that's how it reads to me.

author: rdl
author_rank: Super Contributor
timestamp: April 28, 2018, 07:05:38 am
content: I can't really see what he did wrong, though the branding could be an issue if he actually did that. The disks are definitely free for the asking from Microsoft. I downloaded a copy of Windows 8.1 from them not long ago.They even give you a program to create an iso for burning or to make a bootable flash drive.

author: Halcyon
author_rank: Unknown
timestamp: April 28, 2018, 07:48:26 am
content: According to the facts sheet...Robert Wolff, a co-defendant, contacted Lundgren to inquire about creating unauthorized copies of Dell reinstallation CDs for Microsoft Windows that could be sold to refurbishers of Dell computers. Wolff provided Lundgren an authorized retail copy of a disc he had purchased, and Lundgren arranged for the disc to be copied by a Chinese manufacturer. The copied discs had labels on them that falsely said the discs contained authorized copies of copyrighted software.In 2012, US. Customs and Border Protection officers detained several shipments of discs that Lundgren has shipped to Wolff from China...... Lundgren admitted he shipped approximately 28,000 counterfeit discs to Wolff, and that one one occasion, Wolff paid Lundgren $3,400 in exchange for discs.... Microsoft had a certified computer refurbisher program that made genuine authorized reinstallation discs available to computer refurbishers for about $25.The document goes on but that's the bulk of it. The bloke pleaded guilty to "Conspiring to traffic in counterfeit goods" and "Criminal copyright infringement". I personally don't see the issue with that, however I think the sentence was a bit harsh. I'll leave that one up to the court who will handle any subsequent appeal to reduce his sentence.Full document attached.

author: BrianHG
author_rank: Super Contributor
timestamp: April 28, 2018, 07:48:38 am
content: Update:https://youtu.be/whmMxnhoXaw

author: Zero999
author_rank: Super Contributor
timestamp: April 30, 2018, 10:50:33 pm
content: Quote from: Brumby on April 28, 2018, 02:54:40 amOf course I'm outraged, but not surprised by any of this.Although I agree that it was immoral for him to go to prision and face a stupidly high fine, he clearly did breach copyright law, by redistributing content, without the consent of the copyright holder. The fact that said content can be downloaded freely from the copyright holder's website or that the PCs were licenced to use the copy of Windows they came with is immaterial. He broke the law, by not asking Microsoft's permission to redistribute their works.In short, only Microsoft and those who have their consent, can legally redistribute Windows, whether it be in CD form, or on a website. Anyone else who redistributes Windows is breaking the law.Of course this is is wrong, but it's the law. The judges can only interpret the law. They cannot change it. Whether it's fair or not. Ideally they should have let him off as leniently, as possible, given the circumstances, but this doesn't seem to have been the case.I think copyright should be civil law, not criminal law. It would help to cut down on this sort of thing. Copyright law favours the creators, over the purchasers/consumers far too much. Copyright terms need to be drastically reduced, especially for content such as computer software and abusive ELUAs need to be clamped down on.

author: Brumby
author_rank: Unknown
timestamp: May 01, 2018, 04:20:34 am
content: Quote from: Hero999 on April 30, 2018, 10:50:33 pmBreach of Copyright equates to financial theft. You do not think this is a criminal act?

author: paulca
author_rank: Super Contributor
timestamp: May 01, 2018, 06:41:42 am
content: I can't remember where is is right now as it toggled a few times back and forward, but in the UK they made it illegal to backup personal media if that media contains copyright material. Thus it would be illegal to rip a CD to listen to it as MP3s or FLAC on your PC or phone.This was obviously courts responding to the Golham media companies, "The content providers" IPAA etc.In advertantly the law also covers any copyright work, so unless you are specifically licensed to make a copy it would be illegal to do so.In the process they have made almost every citizen and company a criminal if you were to, say, back up your C drive.Now people will say that is ludicrous and the "spirit" of the law will prevent innocent people who make backups of their computer disks for getting done with copyright violations.However I remember laws that were well thought out, the nets were specifically targetted to try and get the bad guys while specifically shaped to completely miss the good guys. People argue these laws left too many loop holes for criminals to hide, but I always believed it is better to let 100 criminals walk free than to impede or imprison a single innocent.Today laws are cast with a net so wide it catches a majority of innocents which get trawled in the nets and usually, eventually allowed to go. It just comes down to the particular police or court interpretation of the law and whether they like or dislike the person in front of them... or what multi-billion dollar company is breathing down their neck or what level of international press is looking for a scapegoat to poke their pitch forks into.

author: Halcyon
author_rank: Unknown
timestamp: May 01, 2018, 07:21:40 am
content: Quote from: Brumby on May 01, 2018, 04:20:34 amIt's not as simple as that. You can't just assume breaches of the Copyright Act = Theft/Larceny etc... there is case law about this specific issue in Australia.A great example is downloading a movie which has been copied. The mere act of downloading is not unlawful in Australia, nor is it theft. Distribution, public screening, making infringing copies, seeding, uploading etc... however is against the law.Quote from: paulca on May 01, 2018, 06:41:42 amAnd this is where it gets stupid. Australian law specifically allows you to "format shift" (in specific circumstances).

author: IanMacdonald
author_rank: Frequent Contributor
timestamp: May 01, 2018, 07:53:37 am
content: It's worth having a look at copyright Law in your locality. Here and in the USA, it covers only copying and public performance of creative works.Thus, Microsoft's attempts to set conditions such as that OEM software dies with the computer, or that you have to pay according to how many people access a server, don't have any actual basis in Law. I believe in this case the defendant plead guilty so the actual question of whether a crime had been committed didn't go to trial. If it had, then quite possibly Microsoft would have backed down rather than risk a ruling that copyright Law doesn't cover issues beyond its literal remit.

author: Zero999
author_rank: Super Contributor
timestamp: May 01, 2018, 08:07:20 am
content: Quote from: Brumby on May 01, 2018, 04:20:34 amNo, breach of copyright is not financial theft, because no goods/money have been taken. The copyright holder might have incurred financial losses, as a result of copyright breach, but this is a different matter and exactly how much they've lost is often difficult to prove.Compare the two scenarios:1) Someone has a 1000 multimeters stolen.2) A software developer's PCB package is uploaded to fileshare, without their consent and a 1000 people use it for free.In #1 it's clear they've lost the value of 1000 multimeters. This is an indisputable fact.In #2 the software developer would argue, they've lost 1000 paying customers, but this is a wild exaggeration, because it assumes those who got it for free, would have bought it for the asking price. The software developer hasn't physically lost anything, because they can still sell software, to those willing to pay. In reality the software developer could profit in the long run, if students downloaded it, then got their employers to buy it, because it's what they know, when they start work. On the other hand, if a large business used their software, without paying for it, there's more of a case for damages, but it still doesn't mean it would be equal to the number of copies of software used, because if the company paid for it, they might not have used as many licences, or they could have decided it was too expensive and used something cheaper.In the case of Lundgren: I believe he did nothing wrong, morally speaking but he's clearly a criminal, in the eyes of the law.

author: BrianHG
author_rank: Super Contributor
timestamp: May 01, 2018, 09:04:05 am
content: Quote from: Hero999 on April 30, 2018, 10:50:33 pmYou didn't watch my update video I posted 1 single post before your reply. He wasn't primarily nailed for the downloads of laptop recovery discs. He was nailed for printing/using Microsoft Windows's logo and trademark on the discs. M$ lawyer proceeded to stiffen the fine by claiming copyright infringement as a second offense.

author: Zero999
author_rank: Super Contributor
timestamp: May 01, 2018, 09:22:46 am
content: Quote from: BrianHG on May 01, 2018, 09:04:05 amYes I did watch the second video you posted, before I made my first reply. That may have made it worse for him, but ultimately he was done for copyright infringement.

author: orion242
author_rank: Unknown
timestamp: May 01, 2018, 11:20:33 am
content: Quote from: Brumby on April 28, 2018, 02:54:40 amLets simply look at the average age of law makers. We also have law makers admit they don't use email or computers.https://www.nytimes.com/2015/03/12/us/politics/storing-emails-from-these-senators-will-be-easy-if-they-ever-send-one.htmlhttps://gizmodo.com/the-lawmakers-who-control-your-digital-future-are-cluel-1773599908If you don't use technology, how are you competent enough legislate it?

author: Brumby
author_rank: Unknown
timestamp: May 01, 2018, 12:28:29 pm
content: While the mechanics have various components, it is the specific purpose of copyright that I refer to: The protection of an author or rights holder to gain benefit from their work. While there are two parties involved in the transfer of the material it is clear the provider has taken the initiative to distribute and represents the greater offence.I concede the specifics of the legal process can be convoluted, but my understanding is that it is predicated on the principle of ensuring the rights holder can gain benefit from their work.If somebody buys a copyrighted product that is only available by sale and makes a thousand copies of it, then the rights holder has not lost any benefit. However, thesecondthey pass one of those copies onto another party, then copyright infringement has occurred.Whether they have accepted money from the recipient or simply given then a copy for nothing is immaterial. The reason is simple - that recipient will no longer be interested in purchasing their own copy from a legitimate source and, thus, the copyright holder will not gain the benefit from that sale.This "loss of benefit" is something that some people have a real problem with. Some years ago on the eBay discussion boards (no, I haven't been there for a very long time) there was someone who was selling video/mp3 players and had a copy of a movie loaded on them 'for free'. When I pointed out that this was an infringement of copyright I had all sorts of protests - including one that said the seller wasn't making any money from it. But this is the point - that doesn't matter. The holder of the rights to that movie was denied the opportunity to sell it.Quote from: Hero999 on May 01, 2018, 08:07:20 amI'm tempted to claim semantics here - but I will concede the subtlety.QuoteThat is not an issue for determining thefactof an infringement.QuoteThe software developer has lost the income fromupto1000 paying customers. Determining the actual value involved is the tricky bit, but there can be no denying that the developer HAS lost some amount of income - presuming the software was commercially viable.QuoteThat's not really the question.

author: Brumby
author_rank: Unknown
timestamp: May 01, 2018, 12:40:08 pm
content: Quote from: orion242 on May 01, 2018, 11:20:33 amLegislation isn't the real problem. Certainly it is lagging behind the real world issues, but these things can have input from people that do understand the technology. Codifying the spirit of the law into the letter of the law is the real trick - but, again, there is time for review before it gets locked down.The problem I'm referring to is the exercising of the legislation in court - where three parties are involved: The prosecution, the defence and the judiciary.

author: Zero999
author_rank: Super Contributor
timestamp: May 01, 2018, 12:46:38 pm
content: Quote from: Brumby on May 01, 2018, 12:28:29 pmI agree with the principle: people should be compensated for their work, but believe the issue should be a matter of civil, not criminal law. I'd support the idea of ISPs having to pay damages for allowing people to download paid contact for free, because doing so would discourage people from paying for it, but not someone who's merely distributing what's already provided for free.QuoteI agree and that's the problem with copyright being criminal law. Someone can commit copyright infringement, as in this case, at the cost of next nothing to the developer, yet still end up in prison. If this were a civil matter, then the content creator would have to prove they've actually lost something, in order to claim compensation.QuoteI agree, determining the value is tricky, which is why a civil court should decide on what damages should be paid.QuoteYes, that's not he question in this case, which is the problem with criminal law and why it should be a civil matter.Quote from: Brumby on May 01, 2018, 12:40:08 pmI'm not sure if that's a bigger deal, as people make out. Law makers frequently have to legislate on things they don't fully understand, such as medical ethics. This is why they consult experts. The law covers every aspect of life and no one can be an expert on everything.In this case, I don't see how the judge could have come to any other decision, than the copyright infringement.

author: rdl
author_rank: Super Contributor
timestamp: May 01, 2018, 02:04:47 pm
content: If Microsoft didn't want the software copied and distributed, then they shouldn't have made it available as a free download from their web site. They are not damaged in anyway by this. However, if branded as being from Microsoft and the quality is sub-par (infected software for instance) then I can see they have a case in that situation. I'm not sure why anyone would trust a source other than Microsoft for something like this, but people are stupid.

author: Zero999
author_rank: Super Contributor
timestamp: May 01, 2018, 03:57:45 pm
content: Quote from: rdl on May 01, 2018, 02:04:47 pmUnfortunately that doesn't make any difference: as far as the law is concerned, distributing Microsoft's software, without their consent, is a criminal act and can result in time in prison.QuoteI agree, that's a ground for complaint, both legally and morally, although I don't believe it was infected with a virus, but it's not the main factor which resulted in a custodial sentence in this case.

author: IanMacdonald
author_rank: Frequent Contributor
timestamp: May 01, 2018, 04:36:23 pm
content: "Unfortunately that doesn't make any difference: as far as the law is concerned, distributing Microsoft's software, without their consent, is a criminal act and can result in time in prison."I don't see how that can be. Judges don't make laws. They have to abide by the written laws just as anyone else does. The law on copyright is relatively clear (compared to most laws!) and only gives certain specified rights to the creator of a work. One of those is to control copying. However, since a download IS a copy, the act of offering a free download would seem to be a waiver on copying rights.A German precedent has established that in Europe anyway, a copyright holder does NOT have the right to prevent the resale of the physical media containing the copy. So, once alegitimatecopy has been made (and I emphasis legitimate) its changing hands thereafter is not a copyright issue.Even if the download were specified as only for use by owners of licensed computers, the downloader could claim that they did have such a computer at the time they downloaded the software. Since there would be no way of disproving that, it would seem to be hard to make a case against a person without such a computer downloading it. I guess Microsoft could demand that the software be deleted on selling the computer, but then there is no 'Right of Requiring Deletion' in copyright law. Only, of permission to copy. So arguably, such conditions have no basis in Law.Just my interpretation anyway.

author: Zero999
author_rank: Super Contributor
timestamp: May 01, 2018, 05:45:32 pm
content: Quote from: IanMacdonald on May 01, 2018, 04:36:23 pmHow does Microsoft offering a free download void their rights to control copying of their work?If Microsoft wanted to stop offering the download for free, at any point, then they're able to do so. Unauthorised copying/redistribution of their work, whether it be via CD or someone else uploading it to their site, would rob Microsoft of this right.There was a similar problem when people first started recording TV transmissions to video tape. I think broadcasters decided to allow it, as long as the recordings weren't duplicated and redistributed and/or sold.QuoteYes that's true, at least in Europe. Authorised copies of software on physical media, can be redistributed legally.QuoteI suppose one could argue that Microsoft authorised their software to be downloaded on to a computer, therefore what's on the hard drive when the computer is sold, is an authorised copy and it might be a plausible defence, but that's not what's happened here. In this case, it was downloaded, then copied again to CD, without Microsoft's permission and redistributed. There's also the issue of trademark infringement, which I imagine was enough to sway the judge's view.QuoteYes, that's the problem with all laws: they're open to interpretation.