RE: Installing Xy under 32-bit Win; Manual; ANSI

[Norman Bauman nbauman@xxxxxxxx]

Ed,

Many of us are professional writers, but, like Lawrence Lessig, we
recognize a balance between the rights of the author to control his work
and fair use by the reader to use that work.

The McGraw-Hill publications I used to write for had boilerplate which
prohibited *any* copying at all. If we got to the point where we couldn't
copy an article from a magazine in the library, or where we couldn't copy a
file of backup material to send to an editor for checking purposes, I think
most of us would agree that was going too far in the direction of authors'
rights. (Soviet scientists and academics couldn't use copy machines for
other reasons, and I don't think you'd like to live under a restriction
like that either.)

I've interviewed copyright lawyers about fair use, and except for a few
boundary cases, the law is pretty vague. Lawyers couldn't give me a
confident answer about the fair-use status of most of the everyday
situations we run into. (I'm going to interview some more lawyers and write
an article about it one of these days.) I've seen copyright lawyers make
multiple copies of articles and newsletters all the time.

I assume that the current owner of the copyright to the XyWrite Manual is
TTG, they are no longer in business, and their representatives or
successors, if any, can't be located. I think those facts are reasonably
certain.

There are 2 questions, whether it is (1) legal and (2) ethical to copy the
XyWrite manual under those circumstances.

Let's look at the famous Section 107 from the Copyright Act:

"Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the
copyrighted work."

http://www4.law.cornell.edu/uscode/17/107.html

First, consider (4), the potential market. We're not interfering with the
potental market or value of the XyWrite manual, because it doesn't have
much of a value. I don't think they could sell 25 copies if they gave it
away for the cost of postage. If a copyright owner suddenly appeared from
the ashes and asked for triple damages, they'd have a hard time justifying
$30.

Second, consider (1). It's a non-commercial use. We're just users of a
software program that most of us have paid for, and we're trying to get the
manual we need that we can no longer get from the copyright holder.

If you asked a lawyer (as I have), the lawyer would say that there are no
cases on a situation like this. There probably never will be, because
abandoned companies with no assets don't sue anybody.

I've seen authors copy entire copyrighted, out-of-print works in the course
of their research. What are they going to do -- spend all summer in New
Haven reading a book in the Yale Library? This is what people do in the
real world, and they never get prosecuted for it.

So I think you could make a reasonable case that, under the law, it's fair
use, or general business custom, or something like that.

As for the *ethics* of copying the XyWrite manual, I think the situation is
even clearer. Some people follow absolute ethical rules, but other people
follow situation ethics. I don't believe in absolute rules. Absolute rules
get you into all kinds of ridiculous situations. And I don't see the
justification of a rule that says you should never copy a book without the
copyright-holder's permission, even if the copyright holder is no longer in
existence and the permission is impossible to obtain.

I follow situation ethics. In this case, I weigh the harm against the
benefit. I can't for the life of me see any harm (other than the harm of
violating an absolute rule) in copying this manual. And I can see a lot of
benefit. It makes it a lot easier for some people to use their software.

"Abandoned" doesn't mean the same thing as public domain. I'm saying that
because it's abandoned, you could make a copy.

If you're available, and you don't want people to copy your books without
your permission, then that's a different situation entirely. Your books may
have a market value. You're making your books available if there's a
sufficient demand. If I were to copy your books and post them on the
Internet, you'd be losing something. That's not the case with posting the
XyWrite manual.

Norman


At 07:11 PM 8/15/02 -0700, Ed Cray wrote:
>
>Dear Bauman:
>
>As a professional writer, I must take exception to your bizarre notion
>that an "abandoned" copyright is in the public domain. A copyright is
>"abandoned" (i.e. relinquished) only at the end of its term.
>
>I have a number of books still under copyright protection which the
>publishers -- not recognizing my genius -- have let go out of print. Does
>this mean they are in the public domain?
>
>Hardly.
>
>And if you copy the book before I get it back into print with another
>publisher, you stealing my property.
>
>Ed Cray
>
>
>On Thu, 15 Aug 2002, Norman Bauman wrote:
>
>> >From an ethical POV, we have on the one hand, abandoned property that none
>> of its creators wants to use, profit from, or make available, and that they
>> apparently don't care about.
>>
>> On the other hand, this property is useful to others, including the people
>> like me who bought their property when they were selling it. I bought
>> XyWrite with the understanding that they'd be around when I needed them.
>>
>> I can think of lots of legitimate reasons for somebody copying XyWrite and
>> XyQuest software and manuals.
>>
>> Copying abandoned software and manuals is fair use. If J.D. Salinger wasn't
>> around to complain, it would be fair use to copy his works too.
>>
>> Norman
>>
>> At 02:04 PM 8/15/02 -0700, Brian.Henderson@xxxxxxxx wrote:
>> >
>> >You mean, "as if somebody might still be able to make money off that
>> property and I'm stealing the bread from their mouth" kind of "as if"?
>> >
>> >...except that nobody seems to have any desire to make any money from what
>> I want to offer...and offer for free. I don't concede your point.
>>


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