[oclug] Semi-[OT]: Source code ethical dilemma

[elefino]

On Tuesday 20 September 2005 15:41, Andy Civil wrote:
> Jon Earle wrote:
> > I wonder though, does Canada have a law on the books criminalizing the
> > breaking of encryption (not broadcast encryption ala DBS systems)
> > techniques as used in files, etc?  Obviously our neighbours to the
> > south do in their DMCA, but do we have an equivalent law here?
>
> Unfortunately, I don't think it matters. Much as we don't like it, the
> "giveaway" licence was concealed, enclosed, private. It's just not
> relevant - it was not published. It wouldn't be "admissable evidence"
> since it was obtained by cracking, no matter if it was just the same old
> zipcrk that everyone uses. The OP will have to contact the author and
> hope that he or she appreciates the effort.

IANAL.

I disagree. If the original poster downloaded his copy of the program 
only after agreeing to some gating verbiage, then I might recognize 
a statement of intent on the part of the program's originator and a 
statement of acceptance of conditions on the part of the recipient/poster.

But that doesn't seem to be the case.

Similarly, if something was set up to view only, or to run only on 
the originator's site (like a server serving a thin client or web client), 
then I could see an argument for intent of the originator to retain 
control and ownership. However, that was precisely not the situation
here.

Let's try an analogy.
If I publish a book, available to the general public (even if it has an 
esoteric subject-matter that will interest only a select audience), but 
I also include an encrypted message for some of my friends or "co-
conspirators", there's simply no way I can make a case that a 
person who acquires my book at Chapters or borrows it from the 
library, noses around the encrypted stuff and breaks it, is somehow 
infringing on any right of mine.

If I didn't want the message intercepted and the encrypted text made 
public/used, then I should not have included it in a book that I sold 
in unrestricted fashion.

On the third hand (or have I reached the fourth hand by now?), if 
I had had the book printed up, including the encrypted stuff, and 
had then distributed it ONLY to persons who signed an agreement 
not to disclose, not to lend, not.....    you get my drift?  I'd be 
naive in the extreme, but at least I might have some appeal to 
having followed procedure and entered into a "binding" contract 
with my readers.  Again, I don't see that here, where the code 
was given away freely.  The encryption seems to be just packaging.

Still, given the varied opinions that have nevertheless popped up in 
the list, I agree with a few other people that the best approach for 
the original poster to take is to keep coding, and release a complete 
new package, under GPL (or his favorite other license), including 
an acknowledgment of the inspiration provided by the earlier programmer... 
and possibly an explanation like what he included in his first post -- 
that the utility was still worthwhile in his community, but had gotten 
badly outdated and was pointedly not being maintained.

People die. People move on and develop other interests. There's plenty 
of history of abandoned-but-useful utilities being resurrected or 
replaced, and even plenty of history of competing versions, some based 
on the original and some based on the newer re-write, living in parallel 
for years.

The acknowledgment would be at least gracious. The explanation, 
embedded in your release, would say all that was necessary about your 
state of mind -- you were picking up something that had only ever been 
given away free, and that had been abandoned long enough for a process 
as glacial as standards-making to overtake it, and you were making no 
monetary profit from it. Nor were you depriving the original author of 
any money he might have made from his giveaway.

I don't see any court giving him (or his heirs) the time of day if they 
asked for compensation.... compensation based on what? Zero dollars?

Carry on.

Kevin (IANAL)