Possession of the code does not prove one has copied it though. If someone posts it on usenet, he is copying it to numerous servers, but the recipient is certainly not acting as the copying agent. Similar if someone who has the code does ftp send to drop copies on someone else's server: the person who receives such a copy is not the one who performed the copy action.
If one received such a copy, the copyright principles would seem to govern: fair use copy of parts might be ok, wholesale probably not, though an interesting argument can be made for looking for security holes as a part of protecting one's own network. If you are in the habit of looking at code that arrives on your doorstep in the course of protecting your net, the US Code title might govern. Still, it can be a major hassle to show that the code arrived unasked for at your door and it can be a hassle having people suspect your work might have derived from too-large-for-fair-use pieces thereof. I advise against seeking it or messing with it unbeknownst to the owners. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Tobias Weisserth Sent: Wednesday, May 26, 2004 4:39 AM To: [EMAIL PROTECTED] Subject: Re: [Full-Disclosure] Re: Cisco's stolen code Hi Eric, On Wed, 2004-05-26 at 01:54, Eric Scher wrote: > --------------------------------------------------------- > >On Tue, 2004-05-25 Tobias W. wrote: > > > >Well, let's face the simple facts. Cisco's code is copyrighted and it's > >illegal to copy it, distribute it or even use it. There's no way around > >it. > ---------------------------------------------------------- > > > STATEMENT: "There's no way around it." > > RESPONSE: I beg to differ. No disrespect intended, but given the mission statement > for the Full Disclosure mailing list, the use of the "stolen code" clearly falls > under the "FAIR USE" exemption of copyright law. Having said that, there may be > criminal and civil liability issues involved in possessing, transfering or receiving > said code, but it is manifestly not a violation of copyright law. > > > ========================================== > UNITED STATES CODE - TITLE 17 - CHAPTER ONE - SECTION 107 > > Sec. 107. - Limitations on exclusive rights: Fair use > > Notwithstanding the provisions of sections 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 nonprofit educational purposes; > > (2) the nature of the copyrighted work; > > (3) the amount and substantiality of the portion used in relation to the copyrighted > work as a whole; and > > (4) the effect of the use upon the potential market for or value of the copyrighted > work. The fact that a work is unpublished shall not itself bar a finding of fair use > if such finding is made upon consideration of all the above factors > ========================================== As has been pointed out by Valdis, "fair use" certainly doesn't cover the distribution and copying of hundreds of megabytes of Cisco code that wasn't to end up on the Internet in the first place. The intentions, so for example security code audits, don't matter for determining "fair use" either. If we were to decide for ourselves what we define as fair use then there'd be no use for copyright at all since we would be using everything under "fair use". Whatever we do with code we would always define it "for educational purposes". And since you quoted only US law you should be aware that things might actually look a little different now that you have the DMCA. And let's just go a step further. Do we really /want/ to look at code that hasn't been licensed to us? Why /should/ we want to do this? So anytime in the future we are being creative Cisco can claim we must have copied it from their source code since we obviously "took a look at it"?! Closed source products don't become "Open" Source products over night just because the code leaked into the Internet. They stay closed source. Without a corresponding license the availability of Cisco's code (or any other) is useless. The "fair use" thing is an illusion here. But it isn't an illusion big enough to cover the legal risks that are obvious if you touch unlicensed propriety code. regards, Tobias _______________________________________________ Full-Disclosure - We believe in it. Charter: http://lists.netsys.com/full-disclosure-charter.html ********************************************************************** This transmission may contain information that is privileged, confidential and/or exempt from disclosure under applicable law. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein (including any reliance thereon) is STRICTLY PROHIBITED. If you received this transmission in error, please immediately contact the sender and destroy the material in its entirety, whether in electronic or hard copy format. 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