Re: Legality of OEM Win XP 1-2 CPU

From: kurttrail (dontemailme_at_anywhereintheknownuniverse.org)
Date: 06/06/04 

Date: Sun, 6 Jun 2004 08:04:55 -0400

Ron Martell wrote:

> "kurttrail" <dontemailme@anywhereintheknownuniverse.net> wrote:
>
> >Bruce Chambers wrote:
> >
> >> Greetings --
> >>
> >> You're thanking Kurt for deliberately misleading you? While
> >> we're at it, I've some beachfront property in Nevada I'm trying to
> >> sell.
> >>
> >> Do you realize that all Kurt did was quote one sentence, taken
> >> completely out of context, from a court decision that have
> >> absolutely nothing to do with computer software? The case was
> >> about television and motion picture studios trying to prevent Sony
> >> from marketing a video recorder.
> >
> >"Any individual may reproduce a copyrighted work for a "fair use";
> >the copyright owner does not possess the exclusive right to such a
> >use."
> >
> >Where in this statement do you see the Supreme Court limiting the
> >type of "copyrighted work" that ANY individual may reproduced for a
> >"fair use?"
>
> http://lawcrawler.findlaw.com/MAD/fairuse.htm
>
> The doctrine of FAIR USE is described at 17 U.S.C. Section 107.
> "Notwithstanding the provisions of section 106 and 106A, the fair use
> of a copyrighted work, including such use by reproduction in copies or
> phonorecords or by any other means specified by that section, for
> purposes such as criticism, comment, news reporting, teaching
> (including multiple copies for classroom use), scholarship, or
> research, is not an infringement of copyright. In determining whether
> the use made of a work in any particular case is a fair use the
> factors to be considered shall include -
> (1) the purpose and character of the use, including whether such use
> is of a commercial nature or is for or nonprofit educational purposes,

Private non-commercial individual use.

"In a 1994 case, the Supreme Court emphasized this first factor as being a
primary indicator of fair use." -
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

Of course public commercial use is sometimes legally allowable under "fair
use." Private non-commercial use in the home would be the most flexible
form of "fair use."

> (2) the nature of the copyrighted work,

"In addition, you will have a stronger case of fair use if the material
copied is from a published work than an unpublished work." -
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

Not only published, but sold in retail stores as a commercial product.

> (3) the amount and substantiality of the portion used in relation to
> the copyrighted work as a whole, and

Entire. The Supreme Court in 1984, when considering the taping of entire
movies on a VCR already concluded that individuals can copy an entire
copyrighted work as a "fair use."

http://laws.findlaw.com/us/464/417.html

> (4) the effect of the use upon the potential market for or value of
> the copyrighted work."

Non-existent since copyright owner was paid for the original copy by the
indivdiual, thereby has already gotten a "fair return" for the creative
labor of the author(s).

"The limited scope of the copyright holder's statutory monopoly, like the
limited copyright duration required by the Constitution, reflects a balance
of competing claims upon the public interest: Creative work is to be
encouraged and rewarded, but private motivation must ultimately serve the
cause of promoting broad public availability of literature, music, and the
other arts. The immediate effect of our copyright law is to secure a fair
return for an 'author's' creative labor. But the ultimate aim is, by this
incentive, to stimulate artistic creativity for the general public good.
'The sole interest of the United States and the primary object in conferring
the monopoly,' this Court has said, 'lie in the general benefits derived by
the public from the labors of authors' . . . . When technological change has
rendered its literal terms ambiguous, the Copyright Act must be construed in
light of this basic purpose." - http://laws.findlaw.com/us/422/151.html

>
> Note in particular item (3) - "fair use" applies to a portion of a
> copyrighted work and not the copyrighted work as a whole.

Your note is wrong. There is already US Supreme Court precedent that allows
the copying of an entire copyrighted work by an individual as a "fair use."
When the use is for public and/or commercial use, then the likelihood of
copying an entire work being a "fair use" isn't very likely, however for
private non-commercial use in the home, the courts are more likely than not
to view copying an entire work as a "fair use."

>
> Also item (4) would seem to imply that "fair use" cannot be used to
> achieve from a single copy what would otherwise require the purchase
> of 2 or more copies.

Huh? How is that implied? The copyright owner already received fair
compensation for it's copyrighted work. No copyright owner is due more than
a "fair return for an 'author's' creative labor . . . . 'The sole interest
of the United States and the primary object in conferring the monopoly,'
this Court has said, 'lie in the general benefits derived by the public from
the labors of authors' . . . . When technological change has rendered its
literal terms ambiguous, the Copyright Act must be construed in light of
this basic purpose."

Of course you could have save me from repeating this all by just replying to
my reply to Bruce on the "fair use" law.

"Unfortunately, if the copyright owner disagrees with your fair use
interpretation, the dispute will have to be resolved by courts or
arbitration." -
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

So when MS brings me to court over my interpretation of "fair use" and wins,
then I will believe their interpretation, but until then, I have every LEGAL
and MORAL right to follow what I believe are my "fair use" rights to my
legally purchased copies of copyrighted material. And you and Bruce, and
the lord Jaysus effin' Christ, can say I'm wrong, until you are blue in the
face, but that doesn't change the FACT that in the US there is nothing
illegal or immoral about an individual installing and using software, that
was legally purchased, on more than one computer, for private non-commercial
use, until there is a law passed, like UCITA, or a court precedent
establishes that it is. This is how the law works. Tough sh*t for the
corporate copyright elite, their sycophants, and all the FUD that "fair use"
is copyright piracy!

WE THE PEOPLE won't be suckered by FUD & BS any longer! It's time for the
corporate copyright elite to put up, in a court of law, or just SHUT THE
F*CK UP! 

-- 
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei!"