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List:       kde-policies
Subject:    Re: Proposal for P2P disclaimer text
From:       Andreas Pour <pour () mieterra ! com>
Date:       2004-03-16 4:37:43
Message-ID: 40568497.58542C7C () mieterra ! com
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Marc Mutz wrote:
> 
> On Monday 15 March 2004 15:46, Andreas Pour wrote:
> <snip>
> > In case you have not been paying attention to current events, the
> > RIAA is suing a number of people for P2P file sharing.  They have
> > sued hundreds of defendants.  This isn't just some patent
> > hypothetical - or do you mean, we should wait until the KDE project
> > is shut down, before reacting to legal threats to the project?
> 
> As far as I understand it, they are suing the users, not the vendors.

And what prevents the users from then turning around and suing the vendors? 
That's pretty typical.  That's why the text I sent had an indemnity - so the
user cannot sue the software maker and blame him.  Read about the state attorney
general suit Waldo linked to understand more about this point.

Beyond that this very well-known series of lawsuits takes this issue out of the
"needing to search patent databases" case more to the well-known GIF case.  IIRC
KDE stopped shipping GIF support by default and moved away from GIF on the
websites, b/c Unisys was actively suing people.

> What's wrong with waiting until they approach KDE w.r.t. the
> distribution of P2P software, then cry "Help" loudly and at the same
> time remove the offending software from CVS until someone else stops
> this madness in court?

Why should someone answer a cry for "help" when you could have helped yourself?
 
> If we proactively try to follow all legislations KDE software is used
> in, we won't have time to code anymore.

Is the record player skipping?  This case is not proactively following
legislation, it's a case of in-your-face lawsuits all over the place, a case of
cracking down, a case of one of the most powerful industries in the world
fighting for its survival (I don't suggest music and art would stop if there
were unrestricted copying, but the current instituations that rule the
industries would lose out).  If you want to take on the mass media personally, I
wish you the best success, but for KDE it's asinine to fight that fight.

> As an extreme example: No-one
> proposes to add a disclaimer to Konq saying "browsing web sites with
> illegal content might get you in jail. E.g. if you live in Ger*any and
> download a copy of "Mein Kampf" from the internet, you infringe on the
> copyright of the the Bavarian state bibliography."

I do not find the legal risk comparable.  I also of course find a huge
distinction b/w the government suppressing free speech, and an artist charging
for music.
 
> > > As I said, disclaimers such as those presented here can do more
> > > harm than help.
> >
> > Said and proven / convinced is another issue.
> 
> There was a ruling in Germany that voided this popular distancing in a
> case of linking to warez sites (or similar). I don't suck this out of
> my fingers, as we say in Germany ;) And yes, I think those
> circumvention protection laws go to far, and I hope they are turned
> down in the German contitutional court sometime in the future, but,
> indeed, that has no bearing here.

There are three obvious roads to follow. The first is not to ship any P2P
software; the second is to ship P2P software and say nothing; and the third (a
compromise) which is to ship it with appropriate warnings and disclaimers. 
While the third option does not guarantee one won't be sued or victory if one
is, at least it makes the strongest effort to do so w/out censoring an entire
technology (which also has many legal uses) and beyond that makes us look much
better in the court of public opinion (so also makes it much more likely someone
will think we are "responsible" and reply to a cry for "help", as you put it :-)
).

> > > It's quite hard to convince a judge of their validity if
> > > they disclaim stuff you knew beforehand. They raise the impression
> > > that you only tried to cover your ass with them, not stand to them.
> >
> > I don't see how whether you agree with the law or not has any
> > bearing.  The issue one needs to worry about is "contributory
> > infringement", which has a certain legal meaning, and whether or not
> > in your heart of hearts you think that copyright law is good or bad
> > for society is another issue.
> 
> What I want to say is that adding this disclaimer to P2P software, but
> not to Konq or kget or knode or ksirc or kopete gives the impression
> that we are aware of the overproprotional use (w.r.t. your typical web
> brwoser) of P2P software in copyright infringements. Yet we still ship
> it. And why not? Many tools can be used to break the law.

The relevant difference to me is, P2P users and vendors and networks are being
sued or have been sued or are being threatened with suit, and this is quite
pervasive.  And there is a very powerful industry with lots of money and
influence behind it.  And to assume this somehow does not make a difference one
should account for is being pretty idealistic (which is OK for one's own affairs
but not for KDE as a whole).

> In this light, the disclaimer could fire back when the judge asks either
> of these two questions:
> 1. Given that you know that P2P software is mostly used for unlicensed
> copying of copyrighted material, why do you continue to ship it?

We don't know that.  We just know there are many lawsuits in this area ATM, and
we also know that industry standards for this type of software is to have such
disclaimers but that is not so for browsers and such.

> 2. Given that you know that web browsers and IM software can be used for
> unlicensed copying of copyrighted material, why didn't you add this
> disclaimer to that kind of software?

See above.
 
> > > And that is exactly the case here. It's like distancing yourself
> > > from warez sites and at the same time maintaining a warez link
> > > list.
> >
> > I don't see the similarity.  If KDE encourages unlawful use then such
> > encouragement should immediately stop.  Perhaps you are projecting
> > your use of the software onto others?
> <snip>
> 
> I am guilty, yes. I share patches over ksirc. I could as well share
> mp3's. What's the diff between IM and P2P, then? Shall we add this
> disclaimer to every network-enabled application? We post each other
> fish:// URLs to documents and patches over IRC. We could as well post
> fish:// URLs to movies or mp3's.
> 
> That's what I'm saying: If you start this here (P2P), where do you want
> to stop?

Personally I would draw the line where compliance would violate fundamental
human rights (such as, supporting censorship of political views, even including
"My Kampf", "The Communist Manifesto" or "An End to Evil"), though I can see the
argument for not stopping there to keep the project going (and distributing the
human-rights-compatible software separately).

> OTOH, I'm fine with a KDE-wide disclaimer "KDE is network transparent.
> Therefore, almost every KDE application can conceivably be used for
> unlicensed coping of copyrighted material. yadda yadda." That would be
> much more trustworthy than singling out P2P software, which is just a
> funny way to do ftp/www.

When it comes to culture not much is rational.  One year long hair is in, the
next its out.  But still you can suffer quite a bit if you are off with the
timing of your hair style.

It is always wise to bend like straw when a strong wind of legal pressure comes
along.  That does not mean you should walk bent over your entire life.

I have seen plenty of websites which say, in essence, shut down by the RIAA.  I
hope KDE.org does not become one of them.

Ciao,

Dre

-- 
None are more hopelessly enslaved than those who falsely
believe they are free.
  -- Johann Wolfgang von Goethe
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