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Re: Does masquerading conflict with artistic control?

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Charles Bailey
April 30, 2006 07:46
Re: Does masquerading conflict with artistic control?
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On 4/29/06, Allison Randal <> wrote:
> On Apr 28, 2006, at 16:45, Charles Bailey wrote:
> > On 4/28/06, Allison Randal <> wrote: On Apr 26,
> > 2006, at 21:45, Charles Bailey wrote:
> >
> >> If someone were maliciously installing hacked versions of Perl on
> >> people's machines against their will, that would fall into a
> >> completely different legal category, and isn't something for a
> >> license to address.
> >
> > IANAL, but I don't think this is necessarily true.  If you click
> > 'OK' when the Sony DRM installer asks, the fact that it sneaks in a
> > buggy rootkit doesn't put it into a different legal category than
> > if it installed a well-designed userspace agent.
> I meant different in the sense that malicious hacking is criminal
> behavior even ignoring any question of license, and it's more
> appropriate to deal with the problem there. (The Sony DRM installer
> is yet another different case.)
> Another good place to deal with the problem is through trust
> relationships. Sites like SourceForge are useful because they collect
> a bunch of software together, but they're also useful because you can
> see other users' comments on the software, and because SF has a
> policy of removing malicious software.
> > Since the AL explicitly grants anyone the right to distribute the
> > Package, as long as they say they're doing it, and implicitly (by
> > making 4(b) one of several options) grants the right to represent
> > whatever you distribute as the Package, I'm not sure how trademark
> > helps you.
> Think of it like the Apple logo on the back of an iPod. It's a sign
> of a reliable source. If someone shipped something that looks like an
> iPod without the logo, you'd know it wasn't really an iPod, and you
> wouldn't trust it as much. If someone put the logo on cheap knock-
> offs without Apple's permission (pretending to be the real thing),
> Apple can make them stop. Apple doesn't have the right to prevent
> people from making small, rectangular, white MP3 players, but the
> trademark gives them a tool to help keep their users from getting
> tricked by fakes.

What you say makes complete sense.  I think we're just working through
slightly different scenarios.  I expect that the "informed consumer"
will use cues like this, and potentially more direct links like a GPG
signature on the distribution by a TPF source, to obtain a "trusted"

I'm more conceerned about the less knowldgeable or less-well-versed
consumer who decides to install a modfiied package (say, "HyperPerl"
or "Perl++" or "SuperTrafficAnalyzer with Perl!") without realizing
its adverse effects, or even fuzzier situations such as "You clicked
on the attachment to my  email advertisement; that consititued
permission for me to replace your Perl with my modified version"  or
the the botherder's "Of course the owners of all my machines
consented."  This is undoubtedly a fuzzy question, and I'm not sure
what role an open source license has in trying to make dubious (but
not necessarily per se illegal) tactics like this more difficult.  It
does seem to me that the potential reputational damage to Perl in
these hypothetical scenarios is appreciable ("Perl-driven worm
propagates rapidly", "Adware distributor claims he only making
legitimate use of licensed software").  Whether the package author
would want to have an enforceable way to interfere with use of the
package in such schemes (and possibly put up with "Artistic License
not free" criticisms along the way) isn't entirely clear, though.  It
would probably have little impact among savvy readers, who are likely
to know already that the package author doesn't condone the use in
question.  I'm not sure how much practical impact it'd have, or how
much it'd convince a less well informed or less invested audience, who
may focus only on results.

> > My only point was that the warranty the AL presumably meant to
> > disclaim was an "expressed" warranty (i.e. one stated), rather than
> > an "express" warranty ( i.e. a quick one).  The error is so common,
> > though, that I expect "express warranty" is now considered as a
> > term of art identical in meaning to "expressed warranty".  Again, a
> > trivium.
> Ah, right, then I misunderstood the comment. Actually, "express" as
> an adjective means "stated" too. As in "express wish" or "express
> purpose". Not common in modern colloquial usage, but legal language
> tends to hang on to older meanings longer. (The etymology of
> "express" is fascinating, and hinges around people thinking "express
> train" meant it was fast, when it really meant the train was
> dedicated to a special purpose. Eventually "fast" became the primary
> meaning.)

Interesting.  I hadn't thought of that as a current usage, but I see
citations in the OED into the 19th century at least, and that doesn't
include legal usage.  I type corrected.  Serves me right for letting
my prescriptivist streak sneak out in public.   That leaves just the
matter of euphony, on which I should be content that the Elizabethans
didn't leave us with something like  "expresse and implie" as the
common usage (probably not much risk, since the ppt. of "imply" hung
on enough to give us "implicated" and friends, and "implicat[e]"
doesn't roll off the tongue like "expresse").

Charles Bailey
Lists: bailey _dot_ charles _at_ gmail _dot_ com
Other: bailey _at_ newman _dot_ upenn _dot_ edu

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