The Technology Liberation Front - Latest Comments in Is Chen Shoufu China’s Dmitri Sklyarov?

Re: Is Chen Shoufu China’s Dmitri Sklyarov?

Mark Blafkin — Tue, 04 Dec 2007 15:29:29 -0000

Umm...you guys are kidding, right?

We're talking about China here, and you're debating this as if EFF's analysis of EULAs and "reasonable copyright law" are in any way relevant to the situation. It's an interesting discussion and Carme and Tim make good points (with more software development being supported by advertising, this could be an important issue), but let's be clear about the actual case being discussed.

As the NYT noted recently, China supposedly has Free Speech rights too, but that hasn't stopped them from simply calling it "providing state secrets to foreign entities."

Given the actual situation in China, I doubt very seriously that "this arrest should increase awareness in China of the threats that overly-restrictive copyright law can pose to programmers’ freedom."

To paraphrase the famous line from Chinatown..."Forget it Tim, It's China. It's China."

Re: Is Chen Shoufu China’s Dmitri Sklyarov?

eee_eff — Sun, 02 Dec 2007 21:31:00 -0000

If the use falls under an exception like fair use or the first sale doctrine, the use is non-infringing anyway so the details of the contract don't matter.

Would that it were so, but Blizzard v. bnetD (certainly one of the most disastrous and poorly reasoned decisions in recent years.) has probably changed that-the question is for how long...

Re: Is Chen Shoufu China’s Dmitri Sklyarov?

Don Marti — Fri, 30 Nov 2007 17:38:13 -0000

If the user is infringing copyright by applying the patch, then wouldn't the author of the patch be inducing infringement, or perpetrating vicarious or contributory infringement?

There's always Pidgin.

Re: Is Chen Shoufu China’s Dmitri Sklyarov?

Carme — Fri, 30 Nov 2007 17:31:45 -0000

"such violations are issues of contract, not copyright, law".

Of course copyright law shouldn't deal with the details of such contracts, but it can't be taken out of the equation because it is the only incentive the user of a program has to accept any contract at all.

The details of copyright law matter when it comes to the question of whether the user actually has to accept the contract. If the use falls under an exception like fair use or the first sale doctrine, the use is non-infringing anyway so the details of the contract don't matter. A use that doesn't fall under any exception must obey the contract because otherwise it would be infringing.

The EFF page you point to doesn't claim that breaching a EULA is not a copyright issue, but just that EULAs must not trump the first sale doctrine, to which I wholeheartedly agree. If selling a work is not an infringing use, you don't need any license and are not bound by any contract.

As for pointing the guilt, Chen is distributing software that helps users of the original product breach its license and clearly has no non-infringing uses. This is considered infringement under a reasonable copyright law - I don't know the Chinese law but I think it is under U.S. law.

In any case, let's look at the big picture: don't you think in this case copyright law is giving the publisher a clear incentive to create software that is sponsored by advertising? And that this software might not be created if not for copyright law, that prevents users from turning off these advertisements? We don't have to agree that copyright is needed at all, but if it is, this seems like a clear case of the problem it is trying to solve.

Re: Is Chen Shoufu China’s Dmitri Sklyarov?

Tim Lee — Fri, 30 Nov 2007 16:14:32 -0000

Carme, you said:

The software's license has without a doubt a section forbidding changes to the program, so once the "add-on" is applied the license is void and the copy is infringing whether it came from the original site or from someone else.

Carme, that sounds like a violation of a shrink-wrap license. I agree with EFF that such violations are issues of contract, not copyright, law. And in any event, the license is a contract between QQ and its users. If Chen's customers break their licenses, that's an issue between the customer and QQ. I don't see how it justifies throwing Chen in jail.

Re: Is Chen Shoufu China’s Dmitri Sklyarov?

Carme — Fri, 30 Nov 2007 16:01:51 -0000

Hi Tim,

I posted a comment on Techdirt that would be just as relevant here:

http://techdirt.com/article.php?sid=20071130/01...>

In essence, I think it's not only copyright infringement but the epitome of copyright infringement.