Curbing Copyright Abuses by Vendors and On-Line Services
                               Mark J.  Welch
 
    Recently,   several  unrelated  disputes  have  raised  the  issue  of
    Shareware authors' rights.  I'd like to summarize some of the  issues,
    and point people to where other discussions are also going on.  Please
    note that all text not in quotes is written by me.

    For a long time, CompuServe (CIS) has  claimed  copyright  to  certain
    portions  of  its  download  libraries.   Recently,  a dispute between
    CompuServe and a BBS operator resulted in an article inInfoWorld  that
    has sparked a debate over the legitimacy of CompuServe's claims.

    Apparently, the dispute arose because the BBS operator was downloading
    programs from CIS and posting them  on  his  bulletin-  board  system,
    which  either  required  or  requested  a  fee  for  subscribers.  The
    following seven paragraphs of text are from  a  now-widely-distributed
    message from Neil Shapiro, Sysop of MAUG(tm) on CompuServe:
 
    "1)  CompuServe  received a complaint from the author of a copyrighted
    program that his program was being published by Sande's Mousetrap  BBS
    without the author's permission.  The author also indicated that Sande
    had many other non-Public Domain programs on his BBS."
 
    "2) CIS asked me to call the BBS and verify  the  author's  complaint.
    Sande's short bulletin (signed with his nom de plume of "Captain Mac")
    specifically stated that Sande was going onto  GEnie,  CompuServe  and
    Delphi  every week to download all of their files and that if you sent
    him $25 to join his service there was no longer any need to  join  any
    of  the networks.  His short bulletin did not state he was downloading
    public-domain  files  but  said  all  files  and  specifically  stated
    commercial redistribution.

    "3)  At  the  same point in time Sande left a message on MAUG(tm) also
    stating that all files (not just public-domain) were being offered  on
    his  BBS.   I  deleted  that  message  and  sent  him  an  EMAIL reply
    explaining that many of our files were copyrighted by authors and that
    it was unethical to take such files without the authors' permission.

    "4)  CIS' lawyers sent Sande a note which did NOT ask him to close his
    BBS but simply asked that he cease the illegal acts above.

    "5) Sande left many messages on such networks as FidoNET claiming that
    CIS  had told him to close his BBS and that it was public-domain files
    that were at issue.  This is simply a misleading statement.   CIS  did
    not  ask  him to close his board.  The files at issue were copyrighted
    files which CIS had received author complaints over.

    "6) It is important to keep in mind that Sande's BBS was a  commercial
    venture.  it is also important to keep in mind that Sande specifically
    stated in his short bulletin that he t was making network compilations
    of data available commercially.

    "7)  CompuServe  and  MAUG  are  not  attempting to "threaten" any BBS
    system.  BBS systems are the heart  and  soul  of  telecommunications.
    But  the  sysop of a BBS must operate within certain ethical and legal
    guidelines.  One of these, as should be obvious, is that  you  do  not
    use a copyrighted file without the permission of the author."

    A  public  message  (on  FidoNet's IFNA echomail conference) about the
    controversy, from someone who spoke to Shapiro by phone included  this
    summary:

    "A  'shoot  from  the  hip'  analysis  of  our conversation yields the
    observation that CIS is not trying to copyright all the stuff on their
    system,  just trying to protect software that does not give permission
    for public distribution.  Another educational insight to this thing is
    to realize how easy it is to get things bent out of shape on a telecom
    network....Also, the sysop who was the object of the  CIS  threat  was
    way  out  of  line in his behaviour and probably deserved what he got.
    It was a definite case of violation of copyright  laws  (remember  the
    phone book analogy...)."

    At  least  one FidoNet message suggested that users boycott CompuServe
    for some amount of time;  other suggested that the Fido  BBS  software
    not  be  allowed  on-line on CompuServe if the service would claim any
    copyright ownership to it as a result.

    The controversy did  have  one  effect:   several  Shareware  software
    authors  began  doing  their homework on protecting their legal rights
    (see section IV, below).  Rather agressive  discussions  also  started
    about the topic on virtually every electronic service and many BBSs.

    I  had  my own minor dispute with CompuServe a while back:  I spent 45
    minutes uploading GAGS to the service, and the file was lost.   I  was
    charged  for the connect time, and decided not to try again.  Later, I
    decided to allow CompuServe to post it, and gave them permission to do
    so.  I don't know if it's still on-line;  if it is, it's most likely a
    very, very old version.

    Needless to say, CompuServe does not own copyright  to  GAGS,  either.
    Its  responses  to  the  recent  dispute make it clear that people can
    download a few programs from CIS and upload them to other BBSs without
    any  legal  problems,  provided  that the programs' authors allow such
    redistribution.  If anyone hears differently, please let me know.


    II.  PC-SIG

    [earlier articles on this PC-SIG issue appeared in FidoNews  #336  and
    #338.]

    PC-SIG  may  sound  like  the name of a computer users group, but it's
    not.  PC-SIG is a privately-held, for-profit  corporation  engaged  in
    the  business  of  selling  public-  domain  and Shareware programs on
    disks.  They charge a fixed fee of $6 each  for  each  disk,  plus  $4
    shipping  per  order.  There are over 500 disks in the PC-SIG library.
    PC-SIG advertises in many national and regional computer  publications
    (including  BYTE, PC, and InfoWorld).  Another recent discovery for me
    is that PC-SIG is in the complete distribution business now.  Not only
    do  they  sell  disks  by mail order and at trade shows, but they have
    "authorized dealers" in the US and even overseas.

    My understanding is that the company is owned by Richard Peterson, who
    is  also  president.   I have also spoken with Hazel Peterson, general
    manager, and Tom Yarr, vice-president of marketing.   PC-SIG's  lawyer
    is  Thomas Caudill, 1025 North Fourth St., San Jose, 95112-4942, (408)
    298-4844.

    Shareware authors may recall that in its  early  days,  PC-SIG  didn't
    take  much  care  in  compiling  its  library  of  public-  domain and
    Shareware titles.  Author's titles  would  be  added  to  the  library
    without  permission, and in some cases despite clear requirements that
    permission had to be requested.

    For a while, it seemed as if they'd cleaned up their act,  by  getting
    permissions and paying at least lip service to the idea that Shareware
    authors should get contributions.  But I believe that  several  recent
    actions by PC-SIG are having very serious adverse effects on Shareware
    authors.

    The first action brought to my attention was the letter  sent  out  by
    PC-SIG  to vendors whom it believed were improperly using its name and
    disk numbering scheme.  After selling its  printed  directory  through
    bookstores  and  allowing  other  vendors  and  user groups to use its
    numbering scheme for several years, PC-SIG now says it will sue anyone
    who uses the same numbering scheme or, apparently, mentions their name
    in any way (other than in a disclaimer).

    PC-SIG has filed one legal action so far, according to  its  attorney:
    a  million-dollar  lawsuit  against now-defunct National Public Domain
    Software (Santa Clara Superior Court, Case  no.   605640).   A  letter
    from  NPDS's proprietor, Paul Jones, says that the suit drove them out
    of business.

    I have no problem with  PC-SIG's  interest  in  protecting  its  name.
    However,  their method of doing so is at best misleading, and at worst
    deliberately calculated to damage the  rights  of  shareware  authors.
    [If  anyone  would like a copy of any of these letters, please contact
    me.]

    In a nine-page threatening letter sent by PC-SIG to  several  vendors,
    PC-SIG's  attorney  makes  a  number  of statements that by themselves
    threaten shareware authors' copyright and trademark rights:

    1.  Three times in the letter, Caudill claims that all of the programs
    in the PC-SIG library are in the public domain.  Nowhere in the letter
    is there any acknowledgement that most of the programs' authors retain
    copyright  ownership.  This sort of claim, if repeated, has the effect
    of diluting Shareware authors' rights.  [In an Oct.  13 letter to this
    author,  Caudill  said  this claim "was made in error" and that future
    letters would correct the wording, but did not address my request that
    he send a correction letter to earlier recipients.]

    2.   Three  times  in the letter, PC-SIG claims copyright ownership of
    all the disks in the library.  The  overbroad  claim  in  the  letter,
    however,  seems  to  order  the  recipient  to  stop  distributing the
    programs, not just the programs in the same order  PC-SIG  puts  them.
    [Caudill's Oct.  13 letter to this author says that the intent is only
    to claim copyright on  PC-SIG's  directory  disks,  and  that  vendors
    receiving the letter would not be confused.  I disagree.]

    3.   PC-SIG  also claims, in the letter, that the recipient cannot use
    the same disk names and titles  as  PC-SIG,  as  the  disk  names  are
    copyrights  (trademarks?) of PC-SIG.  [In the Oct.  13 letter, Caudill
    concedes that PC-SIG does not claim ownership rights  to  the  titles,
    except  when  used  in conjunction with PC-SIG's copyrighted numbering
    system.]

    4.  The letter also implies that the program authors somehow work  for
    or  with  PC-SIG;   this  is  unnerving  not just because I allow many
    vendors, user groups and BBSs  to  distribute  GAGS,  but  because  it
    implies  an affiliation that may lead buyers to assume that PC-SIG has
    paid  the  authors  for  the  programs  somehow,  thus  reducing   the
    likelihood  of  anyone  ever  sending  me  money.  (I've received many
    registrations, including some from people who bought GAGS  from  other
    vendors:   no  one has ever registered after buying GAGS from PC-SIG.)
    [Caudill's Oct.  13 letter says that the general tone  of  the  vendor
    letters  negate  this  effect,  but  he agreed to put a note in future
    letters saying that PC-SIG has no proprietary rights in the  disks  it
    sells.]

    5.   In the letter, PC-SIG also claims that it can collect the damages
    provided in the  US  Copyright  Act,  which  implies  that  they  have
    registered the disks.  I was assured by PC- SIG owner Richard Peterson
    that the firm has not, in fact, registered  the  disks.   (Of  course,
    that  means  that the list of damages is simply a bluff that cannot be
    asked for.) [Mr.  Caudill's Oct.  13 letter rebuts this, claiming that
    PC-SIG has, in fact, registered the disks.]


    Why is PC-SIG Doing This?

    Now,  as I noted above, I can't object to PC-SIG's legitimate interest
    in protecting its name and its directory.  However, when  I  read  the
    letter  and  talked  to  other Shareware disk vendors, it wasn't clear
    whether PC-SIG's goal was to  protect  its  rights  or  to  drive  its
    competitors out of business.

    PC-SIG  is  using  the  money it has made selling MY SOFTWARE to drive
    other vendors out of business, thus limiting the overall potential  of
    this  distribution  channel.   These other vendors, in many cases, are
    individuals who can't afford to hire a lawyer.

    The most offensive fact is that PC-SIG's letter simply tramples on  my
    legal   rights.   One  vendor,  who  had  obtained  my  permission  to
    distribute GAGS, pulled it (and other programs) from his library after
    receiving  PC-SIG's  overbroad  letter.  It's back in the library, but
    both that vendor and I lost sales as a result  of  PC-SIG's  excessive
    aggression.   If  other  vendors  pull  my  disk or go out of business
    because of PC-SIG's letter, I lose money so that  PC-SIG  can  have  a
    bigger share of a smaller marketplace.

    Of  course, if this one letter were the only problem with PC- SIG, I'd
    not be so worked up.

    But GAGS originally made its way into the PC-SIG library before I gave
    permission.  Luckily for them, I had decided to let them distribute it
    before I  found  out  that  it  was  in  the  library.   I  gave  them
    permission,  and  notified  them  of  each update.  They never sent me
    anything.   PC-SIG  completely  ignored  my  update  notices,  instead
    insisting  four  months  later, when I called them, that I had to mail
    them the update free in  order  to  get  the  new  versions  into  the
    library.   (What a great idea:  their cost of goods is ZERO.  They buy
    disks for 39 cents and sell  them  for  $6  each,  with  no  costs  in
    between.)

    Other  authors'  programs have found their way into the PC-SIG library
    without permission, and in at least one case was sold despite a  clear
    disclaimer in the program stating that for- profit vendors like PC-SIG
    could not distribute  it.   (This  latter  incident  speaks  well  for
    PC-SIG's claim that it screens every program carefully.)


    PC-SIG's CD-ROM Disk:

    A few weeks ago, I discovered that PC-SIG had included GAGS on its new
    CD-ROM disk it is selling,  in  direct  violation  of  the  permission
    letter I gave them.  Again, it never occurred to them to even write me
    a letter asking for a change to my permission letter.  [Caudill's Oct.
    13  letter  claims  that  PC-SIG's  sale  of  the CD-ROM disk does not
    violate my license, which permits sales of any  disk  for  which  they
    charge  $8  or less.  His letter does not mention that the CD-ROM disk
    sells for $195, which my calculator program emphatically says is  much
    more than $8.]


    Lip Service to Shareware authors

    Last  month,  at  the PC-Faire in San Francisco, I picked up PC- SIG's
    catalog update/newsletter at their huge booth.  In the  catalog  comes
    yet  another slap in the face.  I expect companies like PC-SIG to make
    a good-faith effort to  encourage  buyers  to  pay  for  their  disks.
    Instead, the firm's newsletter seems to suggest that Shareware authors
    make megabucks, and don't  need  Shareware  contributions.   A  direct
    quote:

    "Q:  Do the authors who ask for a donation or contribution really make
    money?

     A:  The high end of scale for people using the Open Software  concept
    to  distribute  their software is $1.5 million to $2.5 million a year.
    My estimate is that the  average  developer  earns  about  $40,000  to
    $50,000 a year per program.  Others make less than $500 a year."
 
    I must disagree, Mr.  Peterson:  the average Shareware author probably
    sits a lot closer to your $500 figure.  The only folks I know who have
    such large grosses are folks like Bob Wallace and Jim Button, who also
    run expensive  marketing  campaigns.   If  the  average  author  makes
    $40,000  per  program,  I'll  eat a floppy disk.  The effect of such a
    quote is to make  buyers  think  there's  no  need  to  pay  Shareware
    authors, since they already do so well.

    It  looks  to  me  as  if most of the money being made in Shareware is
    going  into  PC-SIG's  bank  account.   By  itself,  that's  not   too
    upsetting:   I  decided  to distribute GAGS as Shareware, knowing that
    vendors like PC-SIG may make more money than I.

    But I never expected any company to start firing a gun at the  authors
    who are necessary to its very existence.


    PC-SIG Conclusion:

    In my first (September 19) letter to PC-SIG regarding these matters, I
    asked PC-SIG to send a  retraction  of  its  letter  to  everyone  who
    received it, and demanded that GAGS (my shareware program, the Generic
    Adventure Game System) be removed from the illegal CD-ROM  version  of
    the  PC-SIG library.  I also demanded payment for the copies illegally
    distributed.

    Mr.  Caudill's October 13 reply conceded some points,  and  agreed  to
    change future letters, but did not address my request for a correction
    letter.  He also said that their CD-ROM distribution of GAGS is legal,
    but agreed to "pull" it from the next version of the disk.

    My  October  15  reply  to  Mr.  Caudill and Mr.  Peterson did several
    things:  it revokes PC-SIG's license  to  distribute  GAGS,  effective
    November 1, 1986;  it requests again that a correction letter be sent;
    it demands that PC-SIG pay for illegally distributed copies  of  GAGS;
    and requests a written apology for the firm's improper conduct.


    III.  Pink Panther Data Systems

    Pink  Panther  is  a  tiny,  nearly  insignificant vendor, compared to
    PC-SIG.  However, I  recently  discovered  that  they  are  even  more
    discourteous.

    About  two  months  ago, I noticed their booth at a computer swap meet
    here in Northern California.  I looked in the catalog and noticed that
    GAGS  was in their library;  I knew they had not asked for permission,
    so I asked to speak to the person in charge.

    I informed Mr.   Andrews  that  GAGS  cannot  be  distributed  by  any
    for-profit  vendor  unless  the  vendor writes and requests my written
    permission.  He agreed to pull the disk from the library, and to write
    and ask for my permission.

    Two  weeks  later,  I  again saw the company exhibiting at a show, and
    again discovered that they were selling GAGS.  Mr.  Andrews said  that
    he'd  been  busy  and  thus  unable  to  write  a  letter  asking  for
    permission, and that  he'd  put  the  disk  back  in  the  library  by
    accident.

    I  told  him  that  I was quite displeased with his actions, and would
    send him a letter to that effect, but pointed out that if he wished to
    distribute  GAGS,  I  would  grant  permission on receipt of a written
    request.  I sent him my usual firm-but- polite letter asking  that  he
    either stop distributing my program or remove it from his library, and
    demanding a written reply within 20 days.

    He wrote back, saying that he had not  actually  sold  any  copies  of
    GAGS,  that  he has removed it from the library, and that he thought I
    was being too protective of my program.  He didn't ask for  permission
    to distribute it.


    Why am I upset?

    Mr.   Andrews'  reply  letter  suggested that my actions in "fervently
    defending" my rights will reduce  overall  distributYon  of  GAGS  and
    hence  my own income.  I agree with the former but not the latter.  By
    requiring that for-profit enterprises  obtain  my  written  permission
    before  distributing  GAGS, I can provide updates and information more
    efficiently, rather than trusting to "word of mouth." I am also better
    able to check that such vendors are complying with the rules.

    Mr.   Andrews'  letter  also  suggested  that  I was "totally barring"
    distribution of GAGS by commercial libraries.  He's wrong:   any  such
    enterprises  that  obtain written permission and agree to the terms in
    Appendix C of the GAGS manual may distribute GAGS.   Many  firms  have
    done  so,  and  I have never yet refused permission, though I might in
    some cases.

    The following is taken directly from my reply to Mr.  Andrews:

    "One main point seems to  have  escaped  many  commercial  vendors  of
    'user-supported'  software.   Such  vendors are responsible, as is any
    publisher, for obtaining legal rights to  distribute  these  programs.
    Getting  such  permission  is a cost of doing business, and in fact is
    one of relatively few costs that exist in [that] particular business.

    "A few years ago, I worked for an academic book publisher.   For  each
    quote or excerpt by an author, we obtained written permission from the
    copyright owner.  It took us hundreds  of  hours  to  do  this  for  a
    typical  book.   Such  permission  was  almost  always free and gladly
    given.  Had we not  obtained  permission,  there  would  be  no  great
    financial loss to the original publisher or author.  Indeed, the quote
    increases sales of the original work.  But refusal to seek  permission
    would be a breach of common courtesy.  It is also illegal.

    "Refusal to seek the permission of shareware authors also shows a lack
    of common courtesy, and a lack of respect for the law."
 
 
    IV.  Where To Go (for more discussion of shareware rights)

    The discussion of these issues has sparked several developments.


    RIGHTS  Echomail

    First, a new FidoNet "Echomail" conference has been started to discuss
    the issues.  The  EchoMail  area  is  called  "RIGHTS"  and  is  being
    coordinated  by Steve Butler (138/3), Rob Barker (138/34 aka 17/0) and
    Tracy Graves (138/39), all of Tacoma, WA.  It has already been  picked
    up  in  the Austin, Texas area, and will probably be available soon on
    many  more  Fido  BBSs  around  the  country.   (Echomail  conferences
    periodically  "echo"  messages  to  each other, so each discussion has
    many more participants than a single BBS could support.)

    The CompuServe issue was  also  widely  discussed  in  the  IFNA,  and
    apparently the SYSOPS, Echomail conferences.

    According   to  a  widely-distributed  message,  the  RIGHTS  echomail
    conference will discuss:  "Who has what programs on the  $ervices  for
    which  they  were the authors?  What steps WILL we take to protect our
    ability to distribute PD programs, Shareware, etc?  What  contacts  do
    we  have  (collectively) in the Publishing Industry?  What contacts do
    we have on state and federal legislatures?  Who is willing to do  some
    legwork  to  define  exactly  what our exposure is (legally) along the
    lines of routines from:  CompuServe,  PC  Magazine,  CL  Publications,
    etc.

    "We  don't want a bitch session.  We want those who are willing to act
    based on a collective, well thought out  plan  of  action.   Plan  the
    action  for step #6.  Freedom of authors to distribute their handiwork
    as they  desire.   Freedom  of  BBS  systems  to  have  available  PD,
    Shareware,  User  supported, etc.  programs for download in accordance
    with the authors wishes  --  not  somebody  elses  money  scheme  what
    protection  do sysops need from users uploading known copyrighted (ie,
    not for distribution by BBS) software...."

    Probus International, Puyallup, WA (206) 848-9232 (138/3) Arctic  Net,
    Steilacoom,  WA  (206)  581-7003  (138/34)  Computer Coach, Tacoma, WA
    (206) 565-1476 (138/39)



    Other On-Line Discussions

    In addition to FidoNet, there have been some discussions on  BIX  (the
    Byte  [magazine]  Information  Exchange), and of course on CompuServe.
    Both are fee-based information services, charging  for  connect  time.
    For  informaton on CompuServe, call the toll- free number mentioned in
    (I) above.  To get onto BIX, see any recent issue of BYTE magazine  or
    call (800) 277-BYTE or (603) 924-7681.


    FidoNews

    I  doubt  I'll be only one to discuss this issue in FidoNews, which is
    the electronically-distributed newsletter for Fido BBS  sysops.   It's
    available  from  many Fido BBSs, and is edited by Thom Henderson (yes,
    the co-author of ARC and Seadog), who can be reached at Fido node  1/1
    (somewhere  in  New  Jersey).   Another Fido newsletter is the Net 161
    Nooseletter, coordinated by Butch Walker at Fido nodes  161/1  through
    161/4.   I'm sure there are other newsletters as well;  if any contain
    discussions of these issues, I'd like to hear about them.


    IFNA

    The International Fido New Association is a non-profit organization of
    Fido Sysops.  It will apparently  soon  become  the  distribution  arm
    through  which  commercial  copies  of Fido can be purchased, and will
    also be doing work on behalf of Fido sysops, possibly including  legal
    help.   Ken  Kaplan,  Ben  Baker, Thom Henderson, and Tom Jennings are
    probably the best people to get information from on IFNA.  Of  course,
    there's also an IFNA echomail conference on many Fido BBSs nationwide.


    Legal Help

    Shareware  authors  are well advised to investigate their legal rights
    before they begin distributing their programs, if they wish to  retain
    copyright ownership.

    I've  not  read  it, but several people have suggested the book "Legal
    Care for Your Software," which "goes into  all  sorts  of  detail  for
    copyrights,  selling  of marketing rights, royalties, etc.," according
    to a public Fido message.  I believe it's published by Nolo Press, 950
    Parker St., Berkeley, CA 94710, (415) 549-1976.

    There  are  other  books  on  that  and  related  subjects  from  many
    publishers.  Check any bookstore with a large computer book  or  legal
    book section.

    At one time, there was a "model" Shareware license agreement posted on
    CompuServe.  I used it as a starting point for the  license  agreement
    used  in  GAGS  (appendix  C  in  the  GAGS  manual),  but it was much
    different from what I ended up with.

    It may or may not help to talk to a lawyer, since the whole  issue  of
    legal  protection  for  Shareware  is  still  so uncertain.  If you're
    writing a program that you think is worth a lot, you  should  probably
    talk to a lawyer.  Keep in mind that lawyers are expensive.


    Publications

    Unfortunately,  now  that  InfoWorld has completed the transition from
    general-interest computer newspaper to a newsweekly for "volume buyers
    of  PCs," there aren't really any regular news sources for these types
    of issues.   Of  course,  InfoWorld  and  many  other  magazines  will
    continue to publish occasional articles on these issues.

    Another good source for this type of information are local user  group
    newsletters.   Groups  like  the  Boston Computer Society, and the San
    Francisco PC Users Group provide excellent newsletters.

    If  anyone  knows  of  other  publications  that  cover  these  issues
    regularly, please let me know.


    Me

    I'll  continue  writing occasional articles about the progress of some
    of these issues, and will drop them into FidoNews  and  anywhere  else
    I'm welcome.  I'm always glad to talk about the issue, too.

    Mark  J.   Welch, Shareware author (The Generic Adventure Game System)
    P.O.   Box  2409,  San  Francisco,  CA  94126  Voice  (415)   845-2430
    [Berkeley] Fido 161/459 [private, Seadog] BIX 'mwelch'


    [About  the  author:   Mark  J.   Welch  is now a freelance writer and
    full-time law student.  He was formerly a reporter for  InfoWorld  and
    earlier was associate news editor for BYTE.]


    [Permission  is  granted to reprint the article in its entirety, or to
    use any excerpt that does not negate the actual intent of the article.
    This article is not copyrighted.]