Some friends of mine have gotten themselves involved in a somewhat sticky legal matter, and we could all use a little advice.
Essentially, America OnLine posted the Pre-Alpha version of AOL6.0 (working name: “K2”) in an area that was accessible to anyone. No special account or security clearance was required to access this area. Anyone could just go there and download the file.
Well…someone did just that. That person then uploaded it to his website.
Now, AOL has discovered their blunder. They pulled the 6.0 software and moved it into a secure area. It cannot be downloaded by just anyone anymore.
However, it is still on this guy’s website, and AOL is threatening him, and those who have linked to his site, with some serious legal actions if they don’t remove the file. They are somehow under the impression that “Hackers” stole the file.
To date, the websites have banded together, and they refuse to take the file down. Thus, the battle continues.
My questions are:
Since the file was obtained through normal means, with no “hacking” involved, does it fall under the “Fair Use” laws?
Does the threatening letter from AOL’s lawyers hold water?
I’m not legal, but even accepting your version of the story (and I have no reason not to believe you), if I were sitting on a jury, I would nail observers.net on points 2 and 5 of the AOL letter.
However badly they protected it, it is their stuff.
That’s not true, Brian. If you can prove that you are the one who lost that dollar, you are entitled to have it back, at least if you can make that proof within a reasonable period of time.
I’m reading the links to see if I can post a response. This is not my field, though. . . .
David, as much as I’d like to help you and your friends out, I have to take a pass on this – it’s out of my league. The best nickel’s worth of advice I can give them is to scrounge up a few hundred dollars and buy a couple of hours of time from a lawyer who specializes in intellectual property.
intellectual property is a bit on the arcane side, and this inquiry is different from some of the inquiries we’ve had, like the threads going on now about the Rule against Perpetuities and the principles governing squatters’ rights. Those are academic, abstract inquiries about the law generally.
Here, you’re seeking legal advice about a real problem with real people. You should get lawyer to look at it. (Plus, my employer would frown on me giving legal advice over the net.)
Remember the basic line of lawyers and accountants at cocktail parties, when asked for a bit of free advice: the advice is worth what you pay for it.
Warning: Attempt at legal advice from a workers’ compensation attorney to follow. In other words, I think I took a class like this in law school, but . . .
Okay, disclaimer, don’t accept my word as qualified legal advice, etc. etc.
This is not like dropping a dollar on the ground, someone else finds it, now it is theirs. Assume they obtained the program legally. With that assumption, an analogy, assume your friends obtain another program legally, say they buy Doom 2000 at Wally mart. Then they upload it to their website and start giving away copies for free. Not kosher. Methinks Aol will win here, regardless of accusations of hacking.
I read most of what was on those links, and this amateur could not find anywhere that Observers even addressed the copyright infringement issue. The software belongs to AOL, and can only be used in ways that AOL allows. Period.
[disclaimer]
I am not a lwayer. I am not going to address the legal issue. I am (at times) a writer who depends upon the protections of intellectual property rights for a portion of my livelihood.
[/disclaimer]
The program does not belong to observers.net. Posting copyrighted material for dissemination without recompense to the originators of said material is theft. Whatever the circunmstances of teh original acquisition, observers.net is now aware that the material is protected and that the owner of the copyright does not wish it broadcast freely. Therefore they are morally obligated to take down the material. The facts that AOL is rich, powerful and incompetent do not in any way excuse theft.
The best lack all conviction
The worst are full of passionate intensity.
*
What Joe Blank posted is pretty much right on. You can buy or obtain copyrighted material for your own personal use… you just cant distribute it around, making money or not. (well not a lot anyway) Software, movies, characters, logos, all that kind of stuff. I had to sign a copyright disclaimer form when I asked Kinkos to make 4 copies of a picture I drew of Spiderman. I am sure it was just Kinkos way of covering their own ass, but the copies were for my personal use. If I had asked them to print off a thousand copies for me to sell I am sure Marvel would have sent me a letter even though the drawing is mine, but the character is theirs.
“Wow! Spider-Man! Are you really friends with the X-men?” "Not since Cyclops tried to use my viewmaster."
(Marvel Team Up #1)
I’m no lawyer, but it looks like this could be resolved by common sense (not that the law and common sense must go hand-in-hand). I break this situation down as follows:
Everyone involved knows AOL owns the software. The fact that they currently choose to give it away has no bearing on the matter. These websites are infringing on AOL’s right to distribute their software as they see fit. Strike 1
Everyone involves knows that AOL6 is in pre-alpha testing. Software companies do not widely distribute alpha or pre-alpha software. One may occasionally find beta software for distribution, but this is the exception, not the rule. By this “standard of operation” one may deduce that AOL does not want V6 widely distributed. Strike 2!
Assume you were writing a piece software (or a novel, or artwork, etc). You (or your spouse, friend, sibling, etc) accidently uploaded the file(s) to your personal web page. Just because I visit your site and find the file(s) does not mean: A) I can use them as I see fit or B) you lose all copywrite protection. Or perhaps my company, by mistake, makes our customer information files available for download. You stumble accross the file and download it. Does that mean you can post that file on your web page? I don’t think so, and I doubt the law does. Strike 3, you’re out!!
If I were AOL, I would not prosecute the teenager who found the file, assuming he is using only on his personal PC and will not make it available to others. I would inform him that the software is not supported and still contains bugs. If he continues to use it he does so at his own risk and AOL will not be responsible for any loss or damage incurred. I would, however, continue to persue and prosecute any website, commercial or personal, where AOL6 is made available for download.
IMHO, these websites are enjoying the free publicity and revel in seeing themselves as martyrs.
The overwhelming majority of people have more than the average (mean) number of legs. – E. Grebenik
This isn’t my area of legal expertise, either, so I’ll just give you my WAG based on the facts:
The posted material belongs to AOL – that seems to be undeniable. Regardless of how your friends acquired access to it, it also seems undeniable that AOL doesn’t want them using it in the manner they are. So I guess I’d tell them not to do it, unless they want to go to the expense of hiring an intellectual-property lawyer to find some loop-hole for them. I don’t see this as another example of AOL “bullying,” by the way; if it’s their property, they have every right to demand that someone else stop disseminating it without their permission.
I’m finding this thread interesting. I certainly have no legal advice to give, but had a question to throw in the mix…
First I agree with what Dr. J said - AOL has the right to distribute their software as they see fit.
But let me ask this: They currently are distributing AOL v.5 and you can freely download it from their website and ftpsite. But wouldn’t they have the same problem as this with someone who posted AOL 5 on their own site to distribute it without AOL’s permission? What’s to say that this person distributing AOL 5 didn’t hack it and is distributing a changed and non-authorized version.
Personally, whatever anyone thinks of AOL, I think they have the right in this case. But then again, my opinion and a quarter might buy you a cup of coffee. :rolleyes:
MKM: Your “But…” actually strengthens the case against Observers. Even though AOL distributes their Version 5 freely, no one else has the right to do that, because even though it would not cause any financial harm, there is a distinct chance that obtaining a non-authorized version of it via a non-AOL source could do harm to AOL’s reputation (such as it is), and the copyright laws enforce that, too.
I dunno - it’s 15 cent a cup in my office, but I don’t drink the stuff. That’s why I said might Out here in red-neck land I have a coke-cola every morning to start the day.
I wish I had gotten here while it was still an issue, but here is my unlegal take on the situation anyway.
How is this really any different then someone leaving their front door unlocked and someone coming in and stealing something?
Maybe it is a little more along the lines of going into a store. You are invited in and can buy things. The store even gives away free samples sometimes. But if they accidently leave the door to the stockroom open and you wander in, you are not allowed to walk out with the stuff you find just because it doesn’t have a price tag.
Saying this…
I think your friends are in the wrong.
Of course I hate AOL and I think they should spam it all over the net after they take it down
Out here in red-neck land I have a coke-cola every morning to start the day.