PLEASE NOTE CHANGE OF FORUM Most of those who may be interested in this subject are also members of this Forum as well, and we can relieve the traffic jam in the PEDA Forum by continuing in this Forum, if any further continuing is necessary.
I'm not at all sure about membership, so I would not begin a thread of potential general interest (but related in some way to Protel) on this forum, nor would I respond here to a thread begun on the main list unless the response had become totally unrelated to Protel.
In the thread on the main list, the relationship to Protel did become rather tenous at times, but my own messages did continue to focus at least partially on the original question. At least that was my intention, I think I did succeed in realizing it.
Once again, my apologies for not moving it here sooner.
As I see it, the original question, probably quite innocent, provoked a discussion as if the questioner were contemplating unlawful use of the software; however, since the very question was about the lawfulness of the proposed activity, it would seem excessive to pass from the question into a tirade against illegal software usage and promises of great and severe consequences should such behavior come to light.
The general advice given to the questioner was to obtain permission for the use from his employer. Because I like to be thorough in my responses, I did contemplate and address the issue of such use without permission, which would generally be unethical at best and possible illegal. That it would be a felony seems to me a stretch, and, yes, I did read -- fairly thoroughly and several times -- the sections from the California Penal Code as well as related provisions in federal (U.S.) law.
Because Mr. Smith, in his mails, appeared to me to be levelling charges of libertinism -- I think that would be the term -- against me, I did respond in a challenging mode. My apologies for any undue offense; and, while I am not the primary "victim" of inappropriate use of forum -- if anything I'd be a co-conspirator -- I do take the apology as sincere.
It is somewhat frustrating that what I wrote, in general, has not been specifically answered and that incorrect statements by Mr. Smith have, as far as I have seen, not been acknowledged as such. Mr. Smith habitually, it appears, copies the entire original post at the end rather than dealing with it in detail. This style lends itself to abuse of the kind I mention here. It becomes possible, without it being totally obvious, to respond to a message as if something different had been written than what was actually written, thus creating an implicit slander. In this case, because the discussion has been removed to a different forum, it is appropriate to include the original message at the end if not interspersed, but as a continuation of a thread, as was often done in the users Forum, it is not appropriate in my view.
Now to more of the meat of the matter:
[...] Abd, You are missing the whole point. Actually, there are several points, and you are missing them all.
I don't think so, however, perhaps the matter will become more clear.
No, the whole focus of Cyber Crime legislation, either at the Federal U.S. level, or at the State of California level, is not simply aimed at whether or not you make a copy of a licensed computer software program which resides on my computer without my permission, but the prohibition of that act is in fact one of the very many acts that the whole body of Cyber Crime legislation is in fact intended to embody.
Yes, this is true. In context, however, it might be a bit off-center since the potential offense under discussion would not be what is described in this. Rather, what would be more likely is that the user would take a CD lawfully in his possession and without permission install it on another computer, or, even more likely, install it with permission and then use it in a manner not specifically permitted or prohibited.
One of the very many acts that is prohibited by Cyber Crime legislation, is the very simple act of accessing any computer system which is not intended to be publicly accessed, and to which you do not have permission to access.
Yes.
No I am not talking about Copyright violation.
Right.
It is in fact one of the smaller and lesser intents of the Cyber Crime legislation, to prohibit you from accessing my computer system in any manner whatsoever, without my specific permission, and "taking" anything whatsoever, that resides on or belongs to my computer system, in any manner whatsoever, from my computer, in any manner whatsoever, without my specific permission. Period.
Yes.
It is the act of unauthorized "taking" of something that does not belong to you, and something you that are not otherwise entitled to have, that is the "theft".
It is my view that the use of the term "theft" to describe such behavior, where no actual loss has occurred to the "victim," is inappropriate, and I noted that the law does not generally use the term theft. Specifically, it does not state that such behavior is "theft" and would therefore be punished under the penal code sections that deal with theft, but rather it calls it a "public offense" or a "misdemeanor." Both of these can refer to behavior that does not involve actual damages without doing any violence whatever to the English language, and without attaching the natural opprobrium that greets "theft," a common-law crime recognised since ancient times, to the behavior.
If you are writing a journal, and I pass by, and look down and see what you are writing and, perhaps, I deliberately continue my gaze so that I read more of it than naturally and immediately appeared to me (i.e., my behavior has become "willful"), have I committed "theft"? More to the point in this situation, if you ask me to hand your journal to some third party, without giving me permission to read it, and I, overcome with curiosity, open it and read it, have I committed "theft"? My behavior in both cases would be unethical, but generally such behavior, by itself, has not become the subject of the criminal code.
Copyright violation and some kinds of computer crime which are quite analogous to peeking at your journal have become under some circumstances criminal offenses. Were they actually "theft," new laws would not have been required to accomplish this; the behavior would already have been criminal. The new laws are necessary because peeking around computer systems without authorization presents numerous hazards and costs to the public welfare even if no actual loss takes place (other than "loss of privacy"). Someone who enters my house without permission and looks through all the drawers, but does not take anything, has not committed theft and will not be prosecuted as a thief. But he may very well be prosecuted for a different offense, and, if it appears that the motive of the search was to find something to actually steal, then he might be prosecuted for attempted theft.
Now, all of this was generally off the point of the original question, which was not about unauthorized access to a computer system, it was not about hacking, nor did it involve coming into possession of data wrongfully, since I presume that if one is authorized to hold a CD and to install it on one computer, one is an authorized possessor of the data. Using the data subsequently for unauthorized activities outside the scope of employment might be an offense of some kind, but I don't think it would be prosecuted as computer crime. I rather doubt that it could be prosecuted as any kind of criminal offense, but it could be prosecuted, perhaps, as a civil offense.
If the person snuck into the office and stole the CD, took it home, installed it, and then took it back and put it back, (a) classic theft would have taken place and (b) computer crime would have been committed, as I read the statute; but I don't think that the penalty for the relevant computer crime would be as severe as it could be for the actual theft.... but this gets speculative.
1984? I am sorry, 1984 has come and gone. We are twenty years past 1984 in more ways than we probably care to admit.
"Theft" is not just physically depriving someone of his possessions or property anymore.
Right. It has become depriving Microsoft or the RIAA of their alleged lost profit, even if no actual loss can be shown. This is, in fact, newspeak, and I'm glad that Mr. Smith implicitly recognises this. Newspeak is altered use of language to manipulate a public in some desired direction. "Terrorism" is also an example of newspeak, where, for example, guerrillas or others, who might already be under direct attack themselves, attack a purely military target, and they are called "terrorists."
(Please don't think that I condone in any way actual "terrorism," which describes attacks against non-combatants, something generally forbidden by classical Islamic law.)
Yes, it is true that older laws and statutes may specifically refer to "theft" in that limited sense, but the usage of the word in new laws and statutes, not just at a State level, but at the Federal level (and I am sure even possibly internationally), especially in such areas as "Signal Theft", make it clear that it is legislatively intended to also include the taking or accessing anything that you do not have the owners permission to take or access, and appropriating it to your own benefit, irrespective of whether or not the you deprived the owner of his own use or possession.
Where it is so defined, and even without a specific definition but through usage, yes, "theft" is being used with new meanings.
You must remember that language is a living and evolving thing, and that a dictionary or lexicon really does not so much only define words, as they catalogue their usages and meanings, especially as they evolve.
It is not changing the usage or meaning of "theft", but adding a new usage and meaning, as the needs of the language evolve.
Indeed. That does not mean that I or anyone else should accept the encroachment where it has more than pedantic impact. Using "theft" to describe copying your friend's CD with his permission -- but not with the permission of the copyright holder -- is an attempt to manipulate public sensitivity, and that attempt has a lot of money behind it. I do agree that protection of copyright is legitimate; however it seems to me that, in reaction to shifts in technology which make copying easier, the pendulum has swung too far in favor of entrenched financial interests, and draconian punishments are being applied to relatively harmless offenders; however, there does remain some protection in the courts as long as they have discretion in determining sanctions and sentences. (The trend toward defined sentences is in my view destructive and malevolent trend, I've seen severe injustices perpetrated because of this lack of judicial flexibility.)
Don't you see that this is exactly the reason that California Penal Code Section 502(a) actually does precisely define the useage of specific words as to their specifically intended meaning within the rest of Section 502.
Yes. I saw that. I'll note that the term "theft" is not used in that section. In many other sections of the penal code, various activities are described as "theft" or "grand theft" or "petty theft." For example:
484e. (d) Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft.
In this case, there is mens rea, i.e., "the intent to use it fraudulently." The action in itself has not resulted in actual loss, but the *intent* to cause actual loss must be shown for a conviction under this statute.
The section on computer crime does not use the term "theft," so earlier claims that wrongful software installation could result in charges of "grand theft" were definitely overstated. (However, some computer crimes are punished severely, and rightly so.)
And yes, Section 502 of the California Penal Code does in fact define "Data" broadly enough, and I would expect intentionally so, to cover your taking a copy of my licensed Protel Software, from my computer system, which itself is also broadly enough defined so as to even include the CD ROM which is in the desk drawer, and again I would expect intentionally so, without my permission.
It is a tad frustrating that I did note in my writing that such a construction was potentially consistent with the language as read literally and without consideration of precedent, etc. The broadness of the language, I think, was to allow some flexibility in application of the law to unanticipated situations; but I do not agree, at all, that copying data from a CD lawfully in my possession would be considered data theft, transfer of possession of the CD implicitly transferring the data it contains. But the situation that I have taken without authorization the CD from your desk drawer is simple theft, and, in the case of a Protel license, grand theft.
Clearly, however, the employee in question had lawful possession of the data. It is only his *use* of the data that is in question.
Section 502(c)(2) of the California Penal Code, among many many other things, does in fact make it unlawful, that is - illegal, to "take" a copy of Protel 99 SE and its Access Codes, in any manner whatsoever, from any computer system whatsoever, without the express permission of the owner of that computer system. And this, among many other things, is clearly the legislative intent.
If one has permission to access the system, this permission covers all data normally accessible to the user without committing a fraud (such as bypassing password access to get to private data). When I wrote that Mr. Smith missed the point, I meant that he was describing a situation not at all likely to be relevant to the matter at hand. The employee explicitly has the right to possession of the CD and probably of the right to install it on his computer, and it is even likely that he has permission to take the CD home and install it at home for the purpose of using it to do work for his employer at home. The only clear question, then, regards the situation that he uses it without permission to do other work, such as work on his own hobby, or outside work for profit.
I don't think a prosecutor would have any chance at all to prosecute such an offense, if it is a criminal offense at all, as computer crime.
And no, this has nothing to do with Copyright Law.
The original question had partly to do with copyright law. Computer crime has little or nothing to do with copyright law, yes.
If you have any doubts that this is the case, then please look carefully at the specific exemptions of Subdivision (h), which make so patently clear by specifically precluding the application of the statute to an employee in the normal performance of his duties as an employee. This in and of itself establishes that it would in fact be applicable to an employee in any case that was outside of the normal performance of his duties (such as that which we are talking about here).
There is some confusion here. First of all, it has not been stated, as far as I recall, that computer crime, i.e., what is covered by section 502, is a matter of copyright. However, whether it were or were not related to copyright, the establishment of an exemption for copying data in the course of employment.
I do think that a more careful reading of 502 is in order. The matter of applicability of the criminal provisions to actions outside the course of employment is specifically dealt with in subdivision (h). At this point it is appropriate to quote subdivision (h) which is typical in the self-referential confusion common in statutory law. In other words, to understand subdivision (h) you need to understand other subdivisions....
(h) (1) Subdivision (c) does not apply to punish any acts which are committed by a person within the scope of his or her lawful employment. For purposes of this section, a person acts within the scope of his or her employment when he or she performs acts which are reasonably necessary to the performance of his or her work assignment.
But it goes on....
(2) Paragraph (3) of subdivision (c) does not apply to penalize any acts committed by a person acting outside of his or her lawful employment, provided that the employee's activities do not cause an injury, as defined in paragraph (8) of subdivision (b), to the employer or another, or provided that the value of supplies or computer services, as defined in paragraph (4) of subdivision (b), which are used does not exceed an accumulated total of one hundred dollars ($100).
(i) No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
Okay, to understand (2) we need to see the definition of injury:
(8) "Injury" means any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by the access, or the denial of access to legitimate users of a computer system, network, or program.
Let me paraphrase this, someone correct me if I am wrong: If you are an employee, and you have, as such, access to data on your employer's network, and you use this data outside of the normal course of your employment, such as you play a game with the computer, or you store pornography on the server (but not so much as to impair system function), or, even, you copy a program from the computer to a disc and you take the disc home, you cannot be prosecuted under Section 502 of the California Penal Code. You might have committed a civil offense, and, in the case of the unauthorized copy, you might have violated copyright law, but computer crime, not.
I think this is definitive. I had not read this particular section before and I was only relying on my sense of common law and practice that the statute would not be construed so strictly as to include an employee copying a CD lawfully in his possession. As to the CD not being lawfully in his possession, this was already a crime if the CD came into his possession by theft. But no one has remotely suggested or condoned stealing CDs, the most that has been done is to note that unauthorized *copying* -- by an employee -- was not "theft" unless the owner suffers tangible loss. Further, this behavior was by general agreement considered unethical.
Back to the parallel case of "Signal Theft" It is not just the descrambling of a Cable TV signal that is considered "Signal Theft". Yes, that is one form of "Signal Theft", but believe it or not, so is simply connecting your TV set to the Cable TV Company's cable and receiving unscrambled channels (at least here in California).
Yes, I noticed that. And it is called "theft" in a part of the code, "theft of services." That is a linguistic stretch where no additional uncompensated services are performed by the victim. Here is one piece of Section 13848, in a list of offenses:
(4) Theft and resale of telephone calling codes, theft of telecommunications service, theft of wireless communication service, and theft of cable television services by manipulation of the equipment used to receive those services. (5) Software piracy and other unlawful duplication of information.
This, however, is in the preamble of a section providing for funding of agencies, it is not a section establishing offenses and thus the language is informal. Rather, we have:
593d. (a) Except as provided in subdivision (e), any person who, for the purpose of intercepting, receiving, or using any program or other service carried by a multichannel video or information services provider that the person is not authorized by that provider to receive or use, commits any of the following acts is guilty of a public offense:
(1) Knowingly and willfully makes or maintains an unauthorized connection or connections, whether physically, electrically, electronically, or inductively, to any cable, wire, or other component of a multichannel video or information services provider's system or to a cable, wire or other media, or receiver that is attached to a multichannel video or information services provider's system.
(2) Knowingly and willfully purchases, possesses, attaches, causes to be attached, assists others in attaching, or maintains the attachment of any unauthorized device or devices to any cable, wire, or other component of a multichannel video or information services provider's system or to a cable, wire or other media, or receiver that is attached to a multichannel video or information services provider's system.
(3) Knowingly and willfully makes or maintains any modification or alteration to any device installed with the authorization of a multichannel video or information services provider.
(4) Knowingly and willfully makes or maintains any modifications or alterations to an access device that authorizes services or knowingly and willfully obtains an unauthorized access device and uses the modified, altered, or unauthorized access device to obtain services from a multichannel video or information services provider.
I'll note that section (2) could, as a stretch, be construed to apply to adding an extra TV on your cable, but I don't think that would fly. It clearly applies to making a cable hookup without permission, as well as to unauthorized satellite service access (as is elsewhere made explicit).
Yes, the manufacture or sale of unauthorized or bootleg Cable TV Descramblers or Decoders is also prohibited by the laws pertaining to "Signal Theft", to be sure, and they accordingly have much stiffer penalties than are involved with simply tapping into the cable to get the unscrambled channels, but that does not make tapping into the cable for only the unscrambled channels any less of a crime.
Ah, this is overstated. The former offense is a "public offense," which seems to refer to felonies, and the latter would be a misdemeanor, as explicitly defined in Section 593e. In other words, both are crimes, but simply tapping into a cable to pick up the signal is a "lesser crime" with lesser penalties.
"Signal Theft" is pretty much defined as the taking of any signal whatsoever, in any manner whatsoever, when you are not otherwise entitled to have access to that signal, without the permission of whoever "owns"[?] or controls the signal.
I don't find that definition. Where is it?
This only begins to scratch the surface of a few of the issues that you have brought up in rebuttal, but it should be enough to provide food for thought, and establish that there are other real "crimes" involved with the copy issue besides Copyright.
But that was not in question, as far as I know.
If you want , I can answer many of the specific issues that you have brought up, such as what "rights" an you seem to believe that employee may have once the employer gives his initial permission to install the software so that the employee could "practice" at home, which for some odd reason you almost appear to believe are unlimited and even extend far beyond the limited license rights that the employer had in the first place. Please remember that the employer only has limited rights himself in the first place, more than which he cannot give, and even that only by possibly giving up many if not all of any rights he may have once had?
I'm afraid that I don't understand the last sentence. Barging ahead -- who ever said it was necessary to understand something before answering it? --
I certainly did not say that the employee's rights would be unlimited. Once again, Mr. Smith is tilting at windmills.
Rather, I said, more or less, that use outside the scope of his employment might be unethical, depending on circumstances, that to be ethical additional use should be with the permission of the employer. There are a number of issues becoming confused here. One is the employer's rights (and thus latitude) and another is the copyright owner's rights. By using the program outside the scope of his employment without permission, he is indeed, in my view, violating the employer's rights, but if the owner does not suffer actual loss, the employer's remedy might be limited to termination of employment. If such outside use violates the software license (not likely in the situation in question, it could become this if the employee continues use of the program at home, without permission, after being terminated), then it is a copyright violation. If the license owner permits it, or recklessly allows it to occur, the license owner, the employer, could be liable to the copyright owner. If the license owner is unaware of the offense, the copyright owner might claim that this was reckless and might recover some damages, but I wouldn't want to bet major attorney fees on it unless I was desperate to make a point. None of this would be criminal, to my knowledge.
But I believe that I have already given a valid rebuttal to your general position, although if you believe that more dialogue or explanation is necessary on any of the specific issues that you have brought up, I will be glad to oblige.
If you still think that, then it would be incumbent upon you to deal specifically with what I have written, quoting me *exactly* and in context, and show how what I have written is incorrect or perhaps misleading.
There are also a couple of specific issues that you "threw in" in your previous post, that I wanted to let you know did not escape my notice, the meaning of which you may have thought would.
I don't write like that.
Sometimes it's hard to tell whether I am talking to Danny or Abd ul-Rahman.
There is no person named "Danny," if someone calls the name in a room, I wouldn't know it was for me. "Daniel" or sometimes "Dennis," yes, and Abd ul-Rahman, yes. or Mr. Lomax.
These are not simply limited to your responses to my statements regarding right, wrong, ethics, morals, and truth, but specifically go to your statement in the paragraph beginning "It must be nice to be able to go through life with such certainty . . .".
Mr. Smith does not deal with this. He had made certain statements of moral certainty, which could be seen from reading my original message in context. Since this was in a previous message, and not the one which was quoted by Mr. Smith in his present reply, I'm quoting it now:
****begin quote*** [Mr. Smith wrote:]
I don't care how much you attempt to justify the situation, what's right is right. and what's wrong is wrong.
It must be nice to be able to go through life with such certainty. You might be in for a surprise, however, on the day when debts fall due. That person whom you held in contempt might be smiling, as you discover that you failed to examine yourself as carefully as you examined others....
****end quote****
I should note that what Mr. Smith wrote is correct in principle, i.e., right and wrong do not depend upon attempts to justify behavior, but rather apply to behaviors in themselves apart from what we think or say about them. However, motive is not irrelevant, as is recognised in the laws we have been discussing, which, in general, explicitly require certain motives for a crime to exist. However, the more general topic is about ethics, and, again, behavior is ethical or unethical independent of justifications that might be made.
However, this principle applied as I saw Mr. Smith applying it carried with it an assumption that he was able to clearly determine what was right and wrong. While it is true that we have a faculty for determining right and wrong, certainly as it applies to ourselves, that faculty can be quite imperfect when it comes to judging others. Necessity may require us to make judgements, as when, for example, we are so unfortunate as to be made a judge in a criminal case, but that only means we must do the best we can, not that we have the absolute knowledge of right and wrong.
Additionally, your interesting application of "a principle" of Shiria did not escape my notice either, although I could not place it in al Bukhari or others. Nor could I determine from which of the four schools is it derived?
I wouldn't look there. It is a principle of Islaamic law as practiced by all the schools. It is also, I believe, a principle of western common law. To repeat the principle: necessity makes the unlawful lawful. There is, indeed, a hadith, but I do not recall the exact wording. I might be able to dig up one of my reference works on Islaamic law when I get home, which would presumably cite the hadith. The schools, by the way, are schools of interpretation, and there are five major ones if you include the Shi'a. al-Bukhari is one of the most widely accepted collections of hadith, i.e., authenticated stories from the Prophet and his companions, and it would be respected by the four Sunni schools; the Shi'a have their own hadith since they consider the early Sunni transmitters to be, often, corrupt.
I would love to discuss these specific issues in much greater detail with you, although I believe that it should be done off line, and in much less adversarial conditions . . . Don't you agree?
Perhaps. I don't hold on to concepts of "adversarial." Perhaps I am not sensitive enough to the situation of opposition and debate as conflict, I tend to write what I see and think without taking a great deal of time to judge the impact as distinct from the content. In other words, I might write something that I think is true, but that might offend. Rarely, I intend to offend, but that was not the case here, it is reserved as a response to egregiously offensive behavior and even then I try to remain within limits.
I should be explicit that if Mr. Smith wishes to discuss specific issues by private e-mail, he's welcome to write to me. I won't usually respond in such detail, not if I have any sense of what is good for me and my family....
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