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mgh

Copying Programs

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While looking for something else, I came across the following from The Copyright (Computer Programs) Regulations 1992 which, as far as I am aware, are still UK law. The regulations were introduced in response to an EU Directive, so I imagine they're common across the EU. Note that they amend the Copyright, Designs and Patents Act 1988."New permitted acts in relation to computer programs 8. After section 50 insert

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And your point is? That you're fully in your right to use the "backup copy" your friend gave you for "safekeeping"?Microsoft doesn't prohibit you from making a backup, they just made it so that backup wouldn't be able to work :)

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>And your point is? That you're fully in your right to use the>"backup copy" your friend gave you for "safekeeping"?No. Where did I say or imply that? My point was that EULA's are not definitive and can be overriden by local law. The EULA is wrong in at least two places.>Microsoft doesn't prohibit you from making a backup, they just>made it so that backup wouldn't be able to work :)All my FS disks say "Do not make ILLEGAL copies of this disk" - my emphasis. This implies that users are entitled to make legal copies in accordance with the law. I haven't trying copying the disks so have no idea if they can be copied or not. If Microsoft prevents legal copies being made then I suggest it is on dodgy ground - not that it will be challenged on it.

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Remember the EULA is a legally binding contract between you and Microsoft under the jurisdiction under which Microsoft is incorporated (which is likely the state of Washington), not under UK law.

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You are wrong. I live in the UK bought and bought FS from a UK retailer so UK law applies. My EULA says:"If you acquired this SOFTWARE PRODUCT in the United States, this EULA is governed by the laws of the State of Washington. If you acquired this SOFTWARE PRODUCT in Canada, unless expressly prohibited by local law, this EULA is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder, you consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario. If this SOFTWARE PRODUCT was acquired outside the United States, then local law may apply."One of Microsoft's errors is in the last line - local law WILL apply.

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"And your point is? That you're fully in your right to use the "backup copy" your friend gave you for "safekeeping"?"Jeroen,There was nothing in this post which deserved that comment or what it suggests. I found the thread's topic interesting and worthy of discussion. Let's keep the discussion civil and free of these types of remarks, please.-John

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Following up my previous posts, the UK Copyright, Designs and Patents Act 1988 as amended states:"Section 107: Offences Criminal liability for making or dealing with infringing articles, &c. 107.-(1) A person commits an offence who, without the licence of the copyright owner- (a) makes for sale or hire, or (:( imports into the United Kingdom otherwise than for his private and domestic use, or © possesses in the course of a business with a view to committing any act infringing the copyright, or (d) in the course of a business- (i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or (iii) exhibits in public, or (iv) distributes, or (e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work."It is not an infringement of copyright to make a backup copy under Section 50A, so it isn't an infringing copy. So it's neither a criminal nor a civil offence in the UK to make such a backup copy.

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The argument is one made very often to justify software piracy. "look, the law allows me to make copies. I just give those to a friend to look after them so when my house burns down I don't loose both the original and the copy" is a reasoning I must have heard a million times over the years.

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You don't give up do you?Nowhere have I condoned or encouraged piracy. I am merely pointing out what UK law permits. Note the use of the word lawful in Section 50 which limits what the backups can be used for. It would not be lawful to allow them to be used by someone else.

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In the UK Copyright, Designs and Patents Act 1988 (as amended), Section 107 (2) deals with criminal offences and Section 296 deals with civil offences in relation to copy protection or "technical device applied to computer programs" as they're called in Section 296."Section 107: Offences Criminal liability for making or dealing with infringing articles, &c.{I've given Section (1) in a previous post}(2) A person commits an offence who- (a) makes an article specifically designed or adapted for making copies of a particular copyright work, or (:( has such an article in his possession, knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business. ....Circumvention of protection measures 296 Circumvention of technical devices applied to computer programs (1) This section applies where - (a) a technical device has been applied to a computer program; and (:( a person (A) knowing or having reason to believe that it will be used to make infringing copies - (i) manufactures for sale or hire, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or (ii) publishes information intended to enable or assist persons to remove or circumvent the technical device. {Sections (2) through (5) deal with rights to take civil action so I've omitted them}(6) In this section references to a technical device in relation to a computer program are to any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program and are restricted by copyright." It would appear not to be a criminal offence under Section 107 (2) for a private individual to possess such an article as long as it's not used to make infringing copies for sale or hire or for use in the course of a business. As I've said before a Section 50 backup copy isn't an infringing copy anyway. The position of those making such articles seems ambiguous and could be a criminal offence, although it might be argued that cracking copy protection etc isn't the same as "making copies", but I wouldn't care to rely on it! Similarly, it's not a civil offence under Section 296 (:((i) for a private individual to possess a means to remove or circumvent a technical device as long as it's not for commercial purposes. The position of those making such articles also seems ambiguous and might give the copyright holder civil rights against him. There could be debate about the meaning of "sole intended purpose" but 296(1)(B)(ii) seems fairly clear and strict. However, the definition of a technical device relates to "acts that are not authorised by the copyright owner of that computer program AND are restricted by copyright (my emphasis). Making a Section 50 copy is not restricted by copyright so it could be argued that a device that prevents all copying is not a technical device within the meaning of the act. If it allowed one copy to be made then it could be.AVSIM is wise not to allow any such software on its site because it could be caught under Section 107 (2)(f) for possession and under Section 296 (B)(i) under distribution, assuming US law is similar to UK.Finally, for the avoidance of doubt, nothing in my posts justifies or condones software piracy - I am merely giving my view on the UK law especially in relation to the legal rights of a lawful user. Indeed, it should be quite clear that making infringing copies can be both a criminal offence and also give rise to civil action by the copyright holder.

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Isn't it the case that, when you buy software, what you actually buy is a licence to use it rather than the software itself? If that's the case I can't see any reason why an individual couldn't make any number of copies as long as it was only used on only one machine.Victor

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Under UK law a lawful user can make a necessary backup copy for his lawful uses. This wouldn't justify making any number of copies. Also the EULA is likely to forbid making more copies than this.

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You need to see the flip side. While I am sure "your" intentions are good, what is the point of bringing this out for all to see (the ones that WILL use the loopholes for violations to the EULA and the law, of which there are many!) With the push for more rights for legal users comes more opportunities for non legal users to take advantage of the 'system".As an example, would be interesting to se an increase in the sale of freeware on ebay after this posting, because they saw this and figured out what did and didn't apply to them legally or how to get around it.I feel there is entirely to much information available from the internet, books, news, etc for criminals/terrorists/hackers, etc to take advantage of these days, a little "hidden/ hard to find" info can go a long way is helping prevent some of this IMO.Regards, MichaelKDFWhttp://www.calvirair.com/mcpics/mcdcvabanner.jpgCalVirAir International

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eBay's policies specifically state that you are NOT allowed to sell "backup copies" of software or other media....However, as they seem to enforce precisely zero of their policies, I doubt that means much. I may be forced to use eBay on occasion, but I will never, under any circumstances, trust them.In order to protect their copyrighted software against pirates (however well it works...), Microsoft have copy protected their software. Altering or removing that copy protection invalidates your license to use it, so if you create a copy, whether allowed by law or not, you have invalidated the license.Whichever way the pirates like to throw their excuses, they're breaking the law.Ian P.

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"The argument is one made very often to justify software piracy."I think your comments arise out of conflict of interest. Being a developer as you are, a reasonable amount of distrust is to be expected. People look for new ways to steal from our businesses and profession every day. I saw nothing in this topic that warranted that or these comments.I am in the same profession (which I find myself saying too often) and my employers have been burned many times--and with piracy where corporate software is sold, we've been burned to the tune of fifty-sixty thousand per violation. But if a client asked about what their rights are, I would not tell them their intent with their question is to justify software piracy.Also open in this forum is a thread regarding piracy on ebay. I haven't seen you respond, haven't seen you condemn the seller or say anything as negative as you have towards a forum member who is in good standing. I believe you need to forget about what you do for a living, and think about the community you participate in here, before tearing into the motives of a thread. The reason this question comes up more and more often is with most "#4 CD's" going on two years old, failures are becoming more commonplace. Those with the means and knowledge for making a backup copy while they can want to know if they legally can and also want to share with other forum members that they legally can. Not so they can give it to a friend, but so they can continue being able to use the license for FS2004 they paid for. Microsoft is very good about helping replace damaged CD's, but for some who use the sim every day, being dead in the water for a week or two without a backup is a challenge--and I know what a challenge it is since I am often out of town, and away from my beloved sim :) -John

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John, I didn't respond to that other thread because I don't use eBay and am not interested in what happens there.The number of people getting scammed at eBay is large enough that no criminal activity happening there surprises me...As to CD4 getting bad, I've yet to see it happen and I use FS almost every day. While there may be some bad CDs out there most of those have production defects which cause them to fail rather sooner than after a year or more of daily use.And even were it to happen, Microsoft has an excellent program to replace faulty CDs at cost which actually works.In fact, so do most larger (and probably many smaller) software companies. Remember that Microsoft doesn't prohibit you from making copies of their CDs, all they prohibit is you circumventing piracy protection systems (which just happen to make it impossible to copy the disk using off the shelf software without making it impossible to use, but that's a technicality. You can make a copy).And no law says you are allowed to distribute reverse engineered software even if the law states you are allowed to reverse engineer software in violation of a contract you entered into with the creator of that software.The law may say what you're allowed to do, but where a contract restricts your rights further than the maximum the law allows the contract is leading unless and until a court in the jurisdiction where the contract was signed decides otherwise. That's why such provisions are mentioned in the contract in the first place...Now, if the OP wants to take Microsoft to court to force them to remove all piracy protection systems which make it impossible for him to use his backup copy, I wish him the best of luck and a very thick wallet.

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I'll respond to the recent posts.Michael (KDFW)Copyright encourages development of software commercially by restricting unauthorised copying. Without copyright I guess we would have little choice of software, it would be of poor quality, and computing would be still in the dark ages.It is copyright law that, quite properly, gives developers rights and remedies again piracy. However UK law (based on EU law), equally properly, gives rights to uses. These, in summary, are limited to:1) the right to make a backup copy so that the user doesn't need recourse to the developer to continue to use software he is entitled to;2) the right to decompile a program as far as is necessary to develop an independent program which can be operated with the program decompiled. How would the absence of this have affected FSUIPC and similar programs that probe Flight Simular's workings?3) the right (which I haven't mentioned before) to amend a program to correct errors.Why shouldn't users be aware of their rights? I imagine you wouldn't suggest that developers sack all their copyright lawyers who advise them of their rights. Ian PMy EULA says "It is illegal to make unauthorized copies of the SOFTWARE PRODUCT or circumvent any copy protection technology employed in the SOFTWARE PRODUCT." The words on my disks say "Do not make illegal copies of the disk" Backup copies made in accordance with UK law are neither unauthorised nor illegal. My earlier post suggests that a private individual is not committing a criminal or civil offence by possessing a means to circumvent copy protection or using it to make a backup copy under UK law.It's worth noting that Microsoft doesn't actually say that copying disks or circumventing copy protection invalidates the EULA. Even if it did, any clause about copying would be void under UK law and have no effect. I suspect that is why Microsoft has worded that sentence rather oddly - after all breaking the speed limit is also illegal.JohnCiI have often seen it said in the forums that Microsoft will replace Disk 4. I haven't found anywhere a committment from Microsoft to do this. Has Microsoft formally made such a commitment?jrwentingAs you say, Microsoft doesn't attempt to state that CD can't be copied to make a backup (presumably because it knows that such clause would be void under UK law) but applies copy protection to circumvent the user's lawful rights. There is often talk about moral high ground in relation to piracy but where does this approach leave Microsoft?The contract is not leading if it includes a clause that national law states is void."(3) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void)."

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I certainly agree and no one should feel otherwise--no law gives the right to distribute cracks, NO-CD hacks, or other copy protection evasion schemes. I just killed a post the other day which was headed in that direction. I do question the way some of these laws read--since they make it sound like the law trumps any license or contract we choose to make our clients accept, and some laws make it sound like a client could hack our code to their heart's content for "research" purposes. Still, I consider it unfair to always suspect someone a pirate because they want to discuss the law. You make many strong points in your posts and we always need more people sensitive to what developers endure. But it is a topic that can give everyone interesting insight, not just in law as it applies to software, but in giving people the knowledge that just because someone forces you to accapt a contract, doesn't mean all the items within are legally binding in your locality. One problem we have here stateside is we tend to force our customers to be legal experts when they are most vulnerable. An elderly friend purchased a car last year. Three days later it was repo'd out of their driveway and they found another, stripped model in its place! The local dealer said the VIN was wrong on the paperwork--they didn't purchase "that" car, but a stripped model. I didn't suggest a lawyer, because they did sign a contract, probably after sitting in an office for several hours going through the sales hustle that buying a car in the States has become. I hooked them up with the media. They kept their car. How many people check VIN's on their paperwork when buying a car, and compare it to the car they were steered to in the lot? All auto contracts contain a clause stating that errors make the contract null and void.Most people don't see the license terms for software until they load it on their computer. A good portion of them don't know anything about the license at Point of Sale. Is the license legal? Where local law allows, yes. But is it right? That's a decision we as developers must weigh if we're to keep our clients and we should consider our license terms accordingly, especially when it comes to allowing people access to software they are licensed to use. -John

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"I have often seen it said in the forums that Microsoft will replace Disk 4. I haven't found anywhere a committment from Microsoft to do this. Has Microsoft formally made such a commitment?'I don't believe they have. People in this forum have had bad CD's, and my understanding is in most instances, Microsoft has replaced them at no charge. But I imagine they would have a nominal charge to replace a CD for a user overseas. I do know that in years of use, I have only had one CD out of thousands go bad, and it was a CD I burned so I could have access to some of my source code while on a client's site. But many people are unaware of the fact that the most sensitive side of a CD is the label side--if you place an object there that scratches deeply enough, it will destroy the CD. It is much easier to damage a CD from that side vs. the side the data is read from. I believe the average home user, after using a CD every day as most simmers do, well eventually have it fail unless they have a backup. -John

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JohnI don't know if there is an equivalent elsewhere to the UK's Unfair Terms in Consumer Contracts Regulations 1999 (These are based on EU requirements).They apply to contractual terms that have not been individually negotiated, such as when they have been drafted in advance and are presented to the consumer on a take-it-or-leave-it basis, such as standard agreements.Schedule 5 contains an indicative and non-exhaustive list of terms which may be regarded as unfair. The Office of Fair Trading (OFT)responds to complaints from consumers and can intervene to get unfair conditions changed and can, if necessary obtain a court order against an offending company.One of the most recent interventions related to a leading mobile phone company whose terms allowed it to charge a consumer for re-connecting their phone. They relied on this to charge a consumer for re-connecting even when the disconnection was the company's fault. They had to change it!An IT company had to change terms:- excluding liability for defective or misdescribed goods by requiring consumers to inspect the goods and notify faults within a very short time- excluding liability for mistakes or inaccuracies on its website- excluding or limiting liability for defective software- having the option to vary the price and specification of goods- providing confusing information about delivery charges- restricting consumer cancellation rights.In an earlier post, I pointed out that many developers of Flight Simulation add-ons were in breach of the UK Consumer Protection (Distance Selling) Regulations 2000. (These are also based on EU requirements.). These require that the seller must provide clear and comprehensible information to enable the consumer to decide whether to buy. This must include:- the seller's name and, if payment is required in advance, his/her postal address - a description of the goods or services - the price including all taxes - delivery costs where they apply - arrangements for payment - arrangements and date for delivery - the right to cancel the order -how long the offer or the price remains valid.Life can get very complicated!!!

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