[oclug] Semi-[OT]: Source code ethical dilemma
sphex at sympatico.ca
Wed Sep 21 00:45:58 EDT 2005
Bill Strosberg wrote:
> Jon Earle wrote:
>>This case is very gray.
> Actually, it isn't gray at all.
> Scenario: Someone uses cheap locks on their house, and another someone
> breaks in and steals a laptop. Subsequently, the thief gets caught
> selling the laptop on eBay by the police.
> Will police dismiss charges against the thief if they produced a note
> they found in the house during the break in that says anyone can have
> the laptop?
The crime is breaking and entering, assuming there is some evidence.
If there is no witness, and the suspect keeps his wits and his lawyer
about him, the note is sufficient explanation, doubt, for possession of
the laptop. The police would be required to return it to the apparent
owner, the thief, even though the original owner might be able to
recover it in civil court.
I'm not saying anyone stupid enough to sell it on eBay has any wits to
keep about. Nor that the police would return it to him.
> I posed the original question to an RCMP neighbor who teaches white
> collar crime law at the RCMP school here in town, and he said that the
> situation would clearly result in charges being filed, should the
> copyright owner file a complaint. The chargeable act is the breaking of
> the encrypted archive to obtain the copyright material, regardless of
> the license contained within.
This is an entirely different kind of crime.
I didn't know it was illegal, yet, in Canada, to break the encryption,
absent an enforceable EULA forbidding such. Must remember this!
> The license text within the source archive is not germane to the
> situation at all if the complainant indicates it was not his intention
> to release the copyright material. He also indicated the copyright
> owner may be required to document he had made no prior release of the
> copyright material in unencrypted format.
> He said the defense stating "the archive decrypted without permission
> contained a license allowing the release of derivative works" would not
> stand up for a second in court, if the copyright holder demonstrated his
> position adequately.
Does "demonstrated his position" mean show a EULA and "due diligence"?
Or is proof of "no prior release" sufficient?
Adrian insists there is no EULA. In general, proving something has not
happened is quite difficult.
If Adrian had not blabbed everything here, if he had merely (after
destroying any incriminating diskdrives) distributed the open source
code and claimed he had found it on a web-site in Norway and had lost
the URL, it would be difficult to prove otherwise "beyond a doubt".
A (theoretical) civil suit to prevent Adrian from further distribution
might succeed. He would be well advised to reply promptly upon receipt
of the notice to desist, promising to delete all copies in his
possession and (nice guy) to publish a few articles imploring others
worldwide to do the same. However, I expect the owner's lawyer would
advise him that it is too late to stuff the genie back in the bottle.
If Adrian were not so honest (and such a gossip!), if he had quietly
decrypted this thing, leaving no evidence on his harddrives, written
something functionally equivalent (with anomalies removed) (possibly in
a different language), asked the owner to release the original, and
receiving refusal or no reply reluctantly released his own version,
there would be no issue here.
Of course, we don't know if there is some special reason that Adrian
wishes to treat this person more compassionately. Aside from that
possibility, if this were important functionality, given the long
neglect and deterioration, even given the lack of support to the third
platform, I see no moral problems with providing a substitute. How much
of the original code I would use (or admit I had access to) would depend
entirely on my perception of the legal situation.
I was surprised to read above that decryption, ipso, is a criminal
offense. I had not been aware that our laws had become (quietly) so
pernicious. I have neither the skills nor the mind-set to engage in
decryption, in fact... well, that is a whole other thread... If the
decryption is criminal, there are a lot of other things which tend to
get stuffed into the same basket, by certain people, when we don't watch
them carefully. One would be wise to perceive the legal situation as
hostile, and not at all moral.
> Bill Strosberg
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