A Shout Out to Internet Cafe Owners

I’m on the hunt for a good test case. 

As you probably know, various Internet cafe owners are under threat of being shut down for their use of pirated software.  There are rumours that the authorities are conducting raids on non-compliant Internet cafes.  So far, I have yet to see any definitive proof that such a thing has happened and I’m beginning to think it’s an urban legend.

Still, if anyone out there has been shut down or threatened or affected by this, I have some advice.

I agree that the copyright owner (say, Microsoft) has the right to invoke the I.P. Code to stop the unauthorized sale and distribution of software. But I think there’s no basis in the IP Code to say that a copyright owner has the exclusive right to allow third parties to use the works.

Read the following which was written by FSF’s Eben Moglen: (to see the whole thing, click here)

In general, users of copyrighted works do not need licenses. The Copyright Act conveys to copyright holders certain exclusive rights in their works. So far as software is concerned, the rights exclusively granted to the holder are to copy, to modify or make derivative works, and to distribute. Parties who wish to do any of the things that copyright holders are exclusively entitled to do need permission; if they don’t have permission, they’re infringing. But the Copyright Act doesn’t grant the copyright holder the exclusive right to use the work; that would vitiate the basic idea of copyright. One doesn’t need a copyright license to read the newspaper, or to listen to recorded music; therefore you can read the newspaper over someone’s shoulder or listen to music wafting on the summer breeze even though you haven’t paid the copyright holder. Software users are sometimes confused by the prevailing tendency to present software products with contracts under shrinkwrap; in order to use the software one has to accept a contract from the manufacturer. But that’s not because copyright law requires such a license.

A fellow faculty member at the College of Law even wrote an article on the above theory which was published in a Law Center magazine, Digital. I think we should take this argument one step further by talking about the absurdity of interpreting “exclusive use” as part of the bundle of rights under copyright. For example, if I sing or hum a copyrighted song to myself, I’ve “used” it but have not committed infringement. If I read someone else’s book, I’ve “used” the work but not committed infringement. 

I think if we stressed this side of the argument, it makes it more difficult to argue that all “use” of a copyrighted work must be done under a license from the copyright owner.

The only copyright claim they’re left with is unauthorized distribution or copying.  If the Internet cafe doesn’t sell pirated software then the charge of distribution falls apart.  The same is true of the charge of copying if the Internet cafe doesn’t burn pirated CDs or otherwise make copies of proprietary software. 

As to the copies already running on the machines, the Internet cafe owner can’t  be held responsible unless the copyright owner can prove that the software was installed by or in behalf of, the Internet cafe owner.  Even then, the obligation to prove that fact rests with the copyright owner.  The Internet cafe owner doesn’t have to assist in that process.

So, here’s my theory: a user of pirated Windows who does not otherwise distribute, sell, or make copies of Windows can’t be sued for copyright infringement.

I had a chance to talk to a lawyer representing Microsoft about this and offhand, he agrees with me.

If there’s no copyright infringement, what’s Microsoft’s right to stop say an Internet Cafe from using Windows? There’s no contract to speak of so there’s no breach. A civil suit?

Now, this is a legal theory I’d like to test drive in the courts.

Anyone interested?