Re-using copyrighted code

[Mark Janssen]

>> That's not entirely correct.  If he *publishes* his code (I'm using
>> this term "publish" technically to mean "put forth in a way where
>> anyone of the general public can or is encouraged to view"), then he
>> is *tacitly* giving up protections that secrecy (or *not* disclosing
>> it) would *automatically* grant.  The only preserved right is
>> authorship after that.   So it can be re-distributed freely, if
>> authorship is preserved.  The only issue after that is "fair use" and
>> that includes running the program (not merely copying the source).
>
> No, the original author retains all rights except those explicitly
> granted. The same way that obtaining the "source" to a song does not
> give you the right to redistribute the song all you want.

No, you are right only by the *word* of the law, but you have not
included the authors *actions*.  A court has to include both.

He explicitly did not *retain* his rights when he *published* his
code.  There is not word of law that is necessary when his actions
have already done the deed (unless under coercion, of course).

> Fair use has nothing to do with money. It depends on how the work is
> used and how you've changed it. Weird Al's song parodies are fair use,
> even though he sells them.

That can't really be claimed without a case being brought against him.
 Michael Jackson, for example, probably could have made a case against
WierdAl, but did not -- that does not automatically mean that
WierdAl's use was fair-use in the slightest.  In fact, it probably was
not, but MJ made enough money that he probably also didn't want to the
PR loss.

> You distributing copies of a commercial
> software to everyone is not fair use, even though you aren't making
> money.

It *is* absolutely fair use, if that commercial software *published*
their code (in the definition I gave earlier).  If you stole the code
off their protected servers, it is not fair use.

>> Well this is where one must make a distinction with fair-use -- if I
>> re-publish my modifications then the code is still subject to the
>> terms by the original author.  If I make a copy for myself and run the
>> problem for personal, non-commercial use, then I am in the domain of
>> fair use and have no other obligations.
>
> Again, no. The GPL does not restrict your rights when running on
> machines you control, but that's just because of the terms of the
> license. Most commercial licenses include terms like "no reverse
> engineering the software" that have nothing to do with distribution.

Close-source software could automatically be considered "protected",
but that is only out of kindness.  Publishing software, even
closed-source software opens a company to some level
reverse-engineering by the nature of computers and by the fact that
the techniques of turning machine code into assembly are well known.
So they explicitly state that they do not give permission to do so,
yet this is not worth much of anything except for the fact that most
people are intimidated to go against a large software company to argue
their rights.

Apparently these companies have already seen this loophole and have
made things like DRM to put a legalistic container around what would
otherwise be de facto published (machine) code.  But this is not a
legit workaround either and companies have essentially stealing from
the intellectual and creative communities.

There is no legitimate argument against a personal user figuring out
how software works for personal use.  If they don't want people to
"figure it out", they'll have to open stores where people can run
their special software on machines that are under their control.

I'm sorry, this is just the way it is -- everyone's just gone along
with the program tacitly because they get intimidated by the legal
system.  But the law is for people, not for lawyers.

-- 
MarkJ
Tacoma, Washington