Suppose there is a website out there that hosts demos and shareware computer games. Some of them are made by amateurs, others are made by teams at the top of their profession. Some games are accompagnied by a fifty page license, others have no license at all, and some are inbetween.
You want to download one of those games.
What is your legal position?
1. You can download any game off that site; the copyright holders obviously intended them to be distributed that way.
2. You can download only those games whose license allows you to do so; only problem is that you cannot look at the license before you have downloaded the game, ergo: you are not allowed to download anything.
3. You can download any of the games, but if the copyright holder decides to sue you later on, that’s his right.
4. Technically and legally speaking, the copyright holder should license you to download and play the game first, but in the real world we can all just get along and no such draconian measures are needed; among gentlemen, you download the game first; should it turn out later on that you got something you weren’t intended to have, you just delete the file and no harm done.
I don’t know.
Are there legally valid ways for you to know whether you were allowed to use a work? Why has usage of works suddenly become a copyright?
It used to be that if you did no harm, they wouldn’t come after you. In the digital age, that is no longer true. Did our morals change? I doubt it. Does copying in the digital age have vastly different effects from, say, home-taping in the analog age? I sure hope so! But to my knowledge, no-one has ever much measured these differences, let alone tried to find out how they affected the authors.
The effect on the middle-men however, has been amazing. Their most vocal representatives always did seem a bit shady, but at least kept somewhat to the background. The stories of thousands of filesharers sued in the US are well-known. Now, this plague is moving to the Netherlands: Brein foundation has managed to get the DA to lock up a few people (who were released after a weekend–a well-known scare tactic that may yet backfire).
What has this to do with downloadsites? Well, downloadsites seem like a great idea; copyright holders distribute their games among a wider audience, the audience either likes the games or not, everybody happy. Except, of course, that the legal tigers of the middle-men are still roaming the internet, looking for anything that looks even remotely illegal.
I own an Amiga, but nowadays it is firmly lodged in a box. Luckily, there are legal freeware emulators out there, and a site called Back 2 the Roots, which publishes old commercial Amiga games, after of course obtaining a license from the copyright holders that permits them to do so.
Back to the Roots has been shut down on several occassions, after DMCA take-down notices from IDSA (now ESA), the organisation that claims to represent exactly the copyright holders that enable Back to the Roots to do what it does. Is that just ‘colateral’ damage in a world in which ‘piracy’ must be fought, or did we let the dogs out of the pen, and now they must be fed at all costs?
Back to the Roots, in the meantime, has moved to Norway, where DMCA take-down notices undoubtedly still reach them. But there, after the government burnt itself with Jon Johansen, the DA should be slightly more cautious about doing the dirty work of foreign companies.