Re: [fsf-community-team] Question

[Edward Cherlin]

On Sat, Dec 12, 2009 at 16:57, Simon Bridge <address@hidden> wrote:
> On Wed, 2009-12-09 at 16:56 +0800, Peter Rock wrote:
>> A question - Regarding the ACTA issue, do we see any problems with
>> applying the term "counterfeit" applied to unauthorized copies of
>> software?
>
> Pretty much - "counterfeit" is usually applied to currency but has also
> applied to art, and consumer goods, such as the Mona Lisa or designer
> brands. Neither of these would be covered by, say, copyright. (Some sort
> of source identifier is normally used, covered in trademark law in the
> case of consumer goods.)

Trade dress (legal term), including trademarks, packaging, and serial
number tags, can be and is counterfeited. Most of my experience with
this concept relates to ink jet cartridges, which are also violations
of numerous patents and other manufacturer or vendor restrictions.
When I was involved in that business as an analyst, we heard that the
Chinese army had a whole factory for counterfeiting hologram tags for
software, CDs, and so on. Software that is bit-identical is not in
itself counterfeit, since it works correctly (apart from questions of
dongles, registrations, and the like), but if in violation of
copyright or copyleft, is unauthorized and illegal. Trademark
protection gives additional legal tools for enforcing license
restrictions for good or ill.

> It is tempting to apply the same reasoning by analogy to other works of
> art like movies or books. To object we'd need to be able to claim that
> treating unauthorised copies as counterfeit is not legitimate.

A counterfeit book or movie would be one that copies all of the
publisher's information and trade dress, including trademark logos,
attempting to pass itself off as the genuine article from the original
publisher or a legitimate licensee. Copies with the infringing
publisher's name, information, and trade dress would merely be
infringing. Copies pretending to be from someone else entirely would
be fraud.

Disclosure: IANAL. I'm a logician, which is in some respects better.

> It is certainly harmful. It would allow a defacto continuation of
> copyright in perpetuity by adding another restriction to our civil
> rights.
>
>> Also, perhaps with this idea promoted by Microsoft that
>> users are at risk using "counterfeit" copies of Windows we should
>> interject and note that the risk exists primarily in the use of
>> nonfree software, not unauthorized software. It is absurd for them to
>> suggest that users are in danger but would otherwise be safe with
>> authorized nonfree copies. Just a thought.
>
> Nice redirect, and probably worth trying.
>
> This is an example of directing attention to the specifics to highlight
> an issue - in this case, what is the risk of?
>
> I imagine that MSs position is that users are at risk of action from MS:
> lawsuits, inablilty to get security patches etc,

and therefore at risk from malware.

> as well as from
> possibly inferior, compromised, or damaged goods (much as fake designer
> clothing may have inferior workmanship or materials).

-- 
Edward Mokurai (默雷/धर्ममेघशब्दगर्ज/دھرممیگھشبدگر ج) Cherlin
Silent Thunder is my name, and Children are my nation.
The Cosmos is my dwelling place, the Truth my destination.
http://www.earthtreasury.org/