Discontinued Software, The Law, Morals and Hypercard

[James Spencer]

On Jan 22, 2006, at 4:19 AM, Mathewson wrote:

> Recently I had an interesting correspondence with a lawyer
> in the US stimulated by my earlier posting re Apple and
> Hypercard.
>
> The reasons behind my previous posting were:
> ...
> sincerely, Richmond Mathewson

This is off-topic and massively embarrassing to me personally but I  
feel I need to apologize to the list as I'm the dimwitted lawyer that  
this turkey is referring to.  In mitigation, I was trying to help out  
someone who I thought was acting in good faith, not some ass from a  
banana republic who wants to promote software piracy in a developers  
group.  I certainly never suggested to him that should he offer to  
distribute HC for free on the internet that it would be legal much  
less morally OK.  Just to make the record clear (after all I am a  
lawyer :)), I offer the following and then I will drop this  
conversation altogether.

Mathewson wrote the list asking about whether HC had become  
"abandonware."  I assumed he was asking the question in good faith  
but as this has been discussed ad nauseum here and in related forums,  
I answered him off list, clearly and unambiguously stating

> there is no such thing as  "abandonware" and Apple still
> holds the copyright to HC which they  are actively
> protecting.  They are doing so because HC contains
>  technology that Apple is apparently still using or
> intending to use  and which they do not wish to put into
> the public domain.

He replied privately saying:

> Thank you very much for your message: although it does not
> excite me I thought that was the case. Presumably then, it
> would be illegal for me to send a copy of my licensed
> version of Hypercard to a friend?

For right or wrong, I took this to be a real question from someone  
trying to do the right thing.  My reply contained the disclaimers he  
mentions, specifically that a) despite being a lawyer, we had no  
attorney/client relationship and so he should not consider what I was  
saying as legal advice, and b) that I had no particular expertise in  
intellectual property law so he should take my comments as being for  
"educational purposes only."  With that, what I said was that if he  
"privately" gave a copy to a friend, Apple wasn't going to do  
anything about it, that as Apple wasn't even selling the product  
anymore, their concern would be anyone who openly and notoriously  
copied it "such as putting it up for download on their web site or  
publicly offering to sell copies" as such activities could impact  
their rights in the code.  I finished with

> Yes, it is technically illegal to make the copy and as a programmer  
> I suppose we should be telling you not to do it but as you can't  
> buy the product and normally I'm pretty hostile to illegal copying  
> but it's really hard to get too wrapped up about this.

Beyond the lousy grammar, I did not in any way suggest, or at least  
didn't mean to suggest, that making a private copy for a friend would  
include publicly offering to copy for everyone on the internet who  
asked because after all aren't we all "friends."  Apple legally owns  
the rights to HC and they can do with it what they want whether some  
yahoo in Bulgaria (or Minnesota for that matter) thinks its OK or not.

Again my apologies for wasting the list's time and, if inadvertently,  
encouraging this guy.  I won't make the same mistake again.

Spence

James P. Spencer
Rochester, MN

jspencer78 at mac.com

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