DMCA, like other copyright laws, provides no real protection for a small developer.
Q&A About This Article
Overview
Imagine you’ve put your best efforts into developing software. The law says that you automatically own the copyright on your original works, so when a company starts distributing your work in violation of whatever license you’ve chosen, you probably expect copyright legislation like the DMCA to protect you. Unless you've had a lawyer involved since the beginning of development, you'd better think again. This raises questions about the viability of open source licenses such as GPL which hinge on a copyright to ensure that software projects aren’t hijacked.
This is the story of a small, naïve developer who didn’t file the copyright on his software and ended up being abused by Ariston Technologies, in Huntington Beach, California. My hope is that others can learn from this situation.
Summary
Ariston Technologies clearly violated copyright laws by distributing for profit a proprietary work without knowledge or permission of the copyright holder. Copyright laws such as the DMCA provide for collection of either statutory or actual damages. Current interpretation by the courts precludes collection of statutory damages unless the copyright was actually filed with the Copyright Office before the violation. In the case of shareware or open source software, proving damages is exceptionally difficult. However, even in cases where the copyright has been filed, most copyright lawyers do not work on a contingency basis, and so will not bother with a case involving shareware or open source software unless the potential dollar amount is significant. The alternative is for the individual to pay for prosecution out of pocket, which can quickly exceed US$20,000, for an award that may not be even half that. So even in cases where copyright laws have clearly been violated, the net effect is that they are unable to protect the small developer.
Background
In 1998, I developed a small piece of software, Matt’s Hack TV, to fill a particular need. The resulting version 1.0 binary was distributed as "email me ware," which required that users merely email me what they thought of the software. Included in the terms of release was a note that the software was not to be sold. It was not GPLed, but it was free. In 1999, I added functionality and revised the terms to include a $10 shareware fee. It was released as version 2.0.
In early 2000, I discovered that Ariston Technologies was distributing version 1.0 of the software on a CDROM sold with their iSEE-I USB product. The software was also used as advertising on the packaging material (see images to the right), and was featured at the top of the CDROM once opened. The CDROM was not provided as a public service nor was it available to the general public, even though this violated the usage terms of the first, free version. The last page of their manual included wording that stated that all software was furnished under license and that I (being the manufacturer) was effectively providing support for my stolen software, both of which were totally false.
When I first contacted Ariston, I saw the possibility of a business deal, with the potential for a wider distribution base. Unfortunately, when confronted about this matter, Mr. Lazarous Bontour, the president of Ariston Technologies, first feigned surprise and later, he significantly downplayed the situation by claiming that distribution was very limited and that the software had only been used for "tech support." Perhaps sensing impending legal problems, Mr. Bontour never seriously discussed forming a business arrangement, so money didn’t enter the equation. At the end, his tone changed to insults with claims that the software "wasn’t worth" it, and that they were pulling the software from their “latest” CDROM revision, even though the disk info shows the then-current version had been created in January 2000. At this point I knew I was out of my league, so I contacted an attorney to negotiate a settlement.
Several months were consumed with collecting the evidence, providing it to the attorney, and several rounds of attempted negotiation with Ariston. In the end, Ariston stonewalled the process and refused to negotiate. At this point, the only option was federal court, a costly proposition, with the daunting task of proving damages, since statutory damages are available only to software for which a copyright was actually filed before the infringement.
Pursuing the case further is apparently futile as of this writing. My only consolations are that others might benefit from my story and the hope that Ariston will either eventually get what’s coming to them or change their unprincipled business practices.
Q&A About This Article
So what does this have to do with GPL?
All software licenses rely on copyright to function. The fundamentals of this case apply to any sort of license, be it GPL or completely proprietary: copyright was violated and there was nothing I could do about it. So what happens if your GPLed project gets commandeered?
Why was this illegal? Wasn’t it free software?
As opposed to GPL, free in this case refers to price, not freedom to do with it as you will. Copyright guarantees the author exclusive rights to reproduce and distribute the work. Companies such as SSH and Caucho employ a “free for non-commercial use” approach. In my case, the intent was to provide a variation that allowed for both individuals and companies to download the first version and use it for free. Using it for free and reselling or redistributing it are different things under the law, AFAIK.
Why should we feel sorry for you? After all, you didn’t file the copyright.
The purpose in writing was to allow others to learn from my mistakes, to stimulate discussion about how copyright violations might impact the many open source projects (from which all of us benefit), and to bring a sense of closure to this ordeal. As it turns out, even if I had filed the copyright, the end result would not likely be much different: it takes cold, hard cash for attorney retainer fees. I want open source to continue, and I think it better to have all these issues figured out sooner rather than later.
What does this have to do with DMCA?
DMCA, like other copyright laws, were supposed to protect the rights of authors. In this case I found it somewhat ironic that not even the most recent and much-disputed DMCA made any difference. Per the attorney, what happened was clearly a violation of copyright, but it is effectively unenforceable. Why? Two things: money and the failure to file the copyright. DMCA doesn’t change any of that. Which makes us all wonder why it was passed.
So what should I get out of this?
If you’re involved with software, go through the effort to register the copyright and be sure your licensing terms are clear, legal, and defensible.
Reference Materials
Excerpt from GNU Public License
"To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.
For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.
We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software."
Title 17, section 106 of the US Code:
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
Excerpts from H.R. 2281, "To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty."
Section 1202
"(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION. ‹No person shall, without the authority of the copyright owner or the law‹
"(1) intentionally remove or alter any copyright management information,
"(2) distribute or import for distribution copyright management information, knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
"(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, knowing or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title."
"(c) DEFINITION.‹As used in this chapter, the term 'copyright management information' means the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form:
"(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
"(2) The name of, and other identifying information about, the author of a work.
"(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
"(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
"(6) Identifying numbers or symbols referring to such information or links to such information.
"(7) Such other information as the Register of Copyrights may prescribe by regulation, but not including any information concerning the user of a copyrighted work.
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