tig,

I'm guilty as charged. Over the years I've committed numerous acts in violation of written license agreements. But have I broken any laws? Absolutely not -- I'm a law-abiding citizen.

Everything that I've done in violation of license agreements has been, in my opinion, fair use. I, me, moi, Mikey will decide what is fair use. A court will either sustain me, or it will not, but I don't view myself as legally bound by unreasonable or unenforceable contract provisions simply because the licensor says that I should be.

It's like when a restaurant check room has a sign up saying "Not responsible for stolen articles". Well, it depends. Usually they ARE responsible.

But whether or not they're responsible, their SAYING they're not is completely irrelevant. It has no bearing whatsoever on the legal issues.

I'll stop here and then re-read your blog entry to see if I want to add more comments.

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Changed my mind. Before I do that re-read I want to give an example from my professional life ...

We are either honest people or we are not ... or so we like to think. Am I guilty of even a moral traffic violation when I tell you the following true situation?

I'm the owner of a Y2000 suite of Microsoft software purchased for $3,000 as a consultant's package. Never mind what privileges accompany the package, the main feature of interest is Visual Studio 6, which I use every day for work on my AirBoss utility.

One day last year I broke the CD containing the base VS6 installation. Regrettably VS6 had been out of print for a couple of years and Microsoft was unable to supply a replacement CD. They had stopped supporting VS6 and therefore stopped reproducing the master disk when VS8 was released.

So I poked around on the internet and found a download package containing exactly what I needed -- a no-key-required download of the VS6 CD that would otherwise have cost me $1,000 (or whatever the seller might have chosen to charge) to purchase on eBay etc.

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Does that make me a pirate? Technically yes. Morally no, just as you are not a pirate for selling your licensed software CD at a garage sale. Morally I'm entitled to a replacement CD provided by Microsoft. They are unable to give me what I need (and it would have been "free plus postage") so I simply have engaged in what attorneys call self help.

Would a jury convict me of piracy? No way. What I did is obviously fair use, and if somebody from Microsoft happens to read this and wants to make a court case out of it, be advised that I would engage the ACLU and take it all the way to the Supreme Court.

Even attorneys can't tell you what the law is. All attorneys can do is make predictions about how judges are likely to rule on various points of law. The law is what judges say it is, not what attorneys say it is, and certainly not what software developers say it is.

Those things said, I am 100% opposed to piracy yet 100% in favor of common sense and fair use.

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So, for example, when I buy a software utility that is not copy protected -- one that simply uses a registration key to be entered at installation time, I have zero compunctions about installing it on every machine on my LAN. Unless the developer specifically tells me that I may not, I will do it for sure. And even if he tells me that I may not, I just might do it anyway.

The reason is that I have the option of deinstalling the utility from machine A and reinstalling it to machine B, so the real issues are convenience, of multiple copies (and what about backups, hm-m-m-m?), and simulataneous use.

And I don't use them simultaneously. If I'm scrubbing my development system I'm not simultaneously scrubbing my flight system, though I might very well be defragging it, a capability that I have also installed to the development machine.

And so on. I'm exercising self help, common sense, and fair use. And I have no moral qualms about this whatsoever.

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And I'm not going to be bothered by Microsoft unless they want to go through the motions just for the sake of formality -- in which case I'll have a lot of fun advising my attorneys. :D

I'm a brand-loyal Microsoft fanboy -- I've been using their software development tools since 1981, and their operating systems since 1984. I would never do anything to violate the spirit of being a fair customer -- I want Microsoft to prosper. (Because I want them to keep laying golden eggs.)

But a license agreement is not a suicide pact. I'm going to do whatever I need to do provided that it's ethical and legal, decisions that I will make for myself unless and until a judge corrects me.

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EDIT of 26sep-08 ...

I should have said that I'm not an attorney and I am not giving legal advice in either this post or my posts below to this same thread. Anybody who is concerned about matters like these should consult a suitably qualified attorney.

Thank you. In a parallel universe I'm a well respected and widely feared prosecuting attorney.

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Let me clarify what I mean by unenforceable clause ...

Let's suppose that you release a payware utility, WhizBang. You include a statement in your license to the effect "If you plan to run WhizBang you must stop breathing. If are not willing to stop breathing, do not accept this license agreement."

What would I do? I would accept the agreement because, while the rest of the agreement might be legal and moral and enforceable, the requirement to stop breathing is absurd on its face, and to continue to breathe while having accepted the license agreement is both legal and ethical even though it runs completely counter to the developer's stated demands ...

... And I did not have to go to law school to make that determination.

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The fact is, I don't even read license agreements anymore. I don't care what they say. I know the difference between Right and Wrong, Fair To The Developer and Unfair, and so on, and I will always Do The Right Thing regardless of what a license agreement does or does not say.

This is reasonable, for the same reasons that my not walking around with a copy of the Ten Commandments to be consulted everytime I do something also is reasonable. That is, in neither case do I need An Agreement From On High to tell me what I may and may not do.

Now you might say "Wait a minute. Not every culture accepts the Ten Commandments." That's true but irrelevant. The culture I grew up in, the culture I operate in, and the culture in which I made the purchase of WhizBang, DOES recognize the validity of the Ten Commandments, albeit implicitly. (Well, eight of them I suppose.)

It's like the Social Contract. Nobody gave it to you in writing to sign. By virtue of your having been born into your society and not having left it, you have agreed to be bound by its terms. You have also agreed not to commit Crimes Against Humanity, and even if somebody shoved a paper in front of you and demanded that you agree in writing to kill ten Rastafarians, you not only are not required to do it, the unwritten and unsigned Social Contract forbids you to do it.

P.S.

I in fact do own some pirated MP3 tracks -- maybe ten in all. But would I have bought these absent their having been given to me on request by a friend? (An attorney no less!)

No, I would not have. I cite as evidence the fact that I haven't purchased any music at all in the past ten or so years.

Furthermore, not only is what I did fair or close to it, or at least did not harm the music industry, it's probably effective advertising. You see, now that I have high quality copies of "Pick Up The Pieces" and "Cut The Cake", I may very well go get "The Best Of Average White Band", and so on.

Is there complete 100% total justification for what I've done regarding these ten or so MP3 tracks? No. Certainly not. But then I'm not the music industry equivalent of an axe murderer either.

Even though I may have spat into the street while I had a serious case of the flu, in contravention of City Of Lakewood ordinances, and even though I got a traffic ticket in Wheat Ridge to which I pled guilty, I'm a law abiding citizen who stands proud in front of family, community, and the readers of this thread of tig's.

On rare occasions I'm a misdemeanent as discussed above, as are we all. But I've never been a felon, convicted or otherwise.