[Textures] Textures as phoenix?
Paul J. Campbell
campbell at beloit.edu
Wed May 8 13:17:15 EDT 2013
Reinhard and other Textures users,
Let us suppose that Textures 2.19 (Retina and
non-Retina versions) can be altered to run
without checking for an installation key. (I
assure you, it can be done. In light of info
below, let me express that I have no intention of
doing so.)
The U.S. Digitial Millennium Copyright Act (DMCA)
makes bypassing digital rights management (DRM)
of a program a criminal act, even if you do not
intend to distribute the modified work. Similar
laws may apply in other countries under treaties
of the World Intellectual Property Organization
(WIPO).
There are various exceptions ("safe harbors")
cited in the U.S. law (e.g., reverse engineering
for enabling interoperability of an independently
written program). None of these, nor the
exceptions granted on 3-year terms by the Library
of Congress, seem to apply directly to this
situation. However, the law (17 U.S. Code § 1201
(c))
http://www.law.cornell.edu/uscode/text/17/1201
provides:
(c) Other Rights, Etc., Not Affected.-(1) Nothing
in this section shall affect rights, remedies,
limitations, or defenses to copyright
infringement, including fair use, under this
title.
At http://www.mttlr.org/volthirteen/loos.pdf on p. 606 we find the opinion:
"17 U.S.C. § 107 determines if a use is fair (as
opposed to copyright infringement) based on the
purpose and the character of the use, nature of
the work, amount of the work copied, and effect
on the market.48 Balancing these factors
indicates that the copyright holder must suffer
an actual harm before denying the fair use
defense.49 However, the structure and wording of
the DMCA seem to indicate that fair use must be
pigeonholed into a safe harbor against the
presumption that copyright holders control rights
for any use of the work, especially if a "techno-
logical measure had been violated.""
It is certainly unclear who now holds the
copyright to Textures---presumably Barry Smith's
widow, assuming that as owner of Blue Sky TeX
Systems LLC (copyright holder in 2012) he willed
the business and all of its assets to her.
I am not a lawyer, but I would assert that it is
fair use for licensed users of Textures 2.xx to
reverse-engineer the program to avert Internet
check for an installation key, and/or to use such
a version, and/or to distribute such a version to
other licensed users.
Rationale:
---Blue Sky has a warranty obligation ("breach
of an implied warranty of fitness for a
particular purpose"): not adequately fulfilled,
Barry Smith's widow (as president/former
president and probable heir to the company's
assets) has expressed inability to fulfill in a
timely fashion, and there has been no offer of
refund of purchase price or other redress)
---licensed users are entitled to remedy and
redress and otherwise suffer an injury, for which
Blue Sky should be liable
---Blue Sky would suffer no actual harm (company
is apparently defunct, though under what
circumstances---e.g., creditors for possible debt
owing---is unknown; and given the rise of TeXShop
and TeXnicle, there is no market for future sales
of Textures, hence only legacy users are served
by such provision of fair use)
On the other hand, making other
changes/improvements to upgrade the program
(e.g., to adapt to changes in Mac OS) should need
permission of the copyright holder, whoever that
is now.
Let me know what you think. For the benefit of
others whom this email does not reach, please
post also to the Textures mailing list (see
below).
Best regards,
Paul
======================
P.S. The Textures mailing list still exists:
http://email.esm.psu.edu/mailman/listinfo/textures
To post a message to all the list members, send
email to textures at email.esm.psu.edu.
However, lately I have not been receiving any
messages from the list (even my own posts).
Curiously I now see threads (incl. my posts) at
http://answerpot.com/forumdisplay.php?4-L309333-Textures
The Textures Archives (2007-2013) are at
http://email.esm.psu.edu/pipermail/textures/
I do not know how many users subscribe to the
list; I just wrote Gary Gray to ask.
I have sent this msg to the list.
--
--------------------------------------------------------
Paul J. Campbell
Mathematics and Computer Science
Beloit College
700 College St.
Beloit, WI 53511-5595
USA
ofc: send email instead
fax: (608) 363-2052
res: (608) 362-2805
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