DIY_EFI Digest - WB02 fiasco - long

[Clare Snyder]

Last things first.
IF I was not on this list, and came across the Oz board by accident, and decided
I wanted to build one of these gizmos - not having the capability of designing
my own board, and not being aware of the availability of the "authorized"
board - what choice would I have? As it is, I saw the Oz board, and originally
thought it WAS the only board available. I put a request to the group to see
what was available and was given a website. I went to that website and ordered 2
boards - thinking they would come from Oz, and at $12 per board he might well be
barely covering costs. I used to pay $6 (Canadian - when Canadian and US were
almost at par)each in lots of 500 for some little adapter boards with a set of
header pins, about 1/2 by 2 1/2 inches that I had custom made for a computer
application about 10 years ago. If I had 10.000 made, the price dropped to about
a buck.

And no, I'm no admirer of either of those hucksters - but when I have to put an
agreement together, I have to look at what someone else MIGHT construe it to
mean. A lot easier to cover your ass on the way in than on the way out. Whatever
you explicitly state tends to over-rule what you imply - and by stating
something is public domain, or free, tends to over-ride, in many peoples
consciousness, what comes after. Rather to overstate the obvious - this product
/ design is the property of *********, even though it is implied by law. Then
you explain how it may be used, by whom, and what recognition/payment if any is
required. Approaching it this way tends to eliminate confusion.
I only look for loopholes in agreements I write, or that are to protect me.
Only crooks and weasels (including lawyers) look for loopholes to squeeze
through.
NOTE***** I'm not making excuses for Peter's actions, or condoning them.
********I'm just saying there are ways of making it more plain what the
intentions are, without giving the weasels holes to peak through.
As far as I am concerned - regardless where I get the board, I am honouring the
terms of the agreement. If I have a board custom made for me by a local PC
manufacturer, at a one-off or 2 off cost of, say $100, someone has made a profit
off of me  - likely a pretty hefty one - but that does not put ME in
contravention of the agreement. Does it put my supplier in contravention? NO.
Not in the spirit, or in the letter. If he then sells copies of the board to
someone else, he has ME to deal with, because at that point it is MY
intellectual property he is stealing (although I do not have the right to make a
profit from it in any way, or claim any credit for it). This is exactly what
happens if you have anything of value produced in HongKong, China, or
Taiwan -don't ask how I know.(Do we add Oz to this list?)

Now, say I am a list member, or not, who wants one of these WB02 sensors, but
I'm a real Klutz with a soldering iron - so I offer to pay another list user to
build mine for me. Is he in contravention if he is paid to assemble it for me?
I would think not. What it comes down to is the ATTITUDE, and the INTENT. It
seems Peter's intent was to make some money, and his attitude was SC%#W YOU!!!
In a blatant display of poor taste and bad judgment, he advertised his
indiscretion on the very list he "dissed". He deserves to be shunned - but those
who availed themselves of his boards should not be ostracized for it unless they
think Peter was within his rights, legally AND morally to do what he did.
>
> Date: Thu, 25 Oct 2001 17:10:40 -0700
> From: Brian L Massey <blocklm at juno.com>
> Subject: Re: EULA
>
> On Thu, 25 Oct 2001 18:05:01 -0400 "Clare Snyder" <claresnyder at home.com>
> writes:
>
> > I would tend to agree, Bruce - If you have released a product to the
> > public
> > domain, and then try to enforce ANY EULA, regardless how reasonable,
> > you are SOL.
>
> Agree with what? That isn't what has happened here. The words "public
> domain" appear in the very same text as the rest of the conditions
> specified at the outset. What you describe above as "...and then try..."
> wasn't a sequence of events that happened over time. Even ErikQ's post
> wasn't suggesting that. Anyone who read even that initial file understood
> that the technical meaning of 'public domain' *couldn't* have been meant
> by the author, if you read the rest of the file; it is obviously stating
> conditions of usage.
>
> If you had read the usage agreement yourself, you would know that. (Oh
> oh, another one caught.)
>
> I agree the use of the term 'public domain' is confusing as you start to
> read the UA, but fixating on those words and denying the clear intent of
> the rest of the text would be like reading the following: "permission to
> freely use the following material is granted, as long as ...", and then
> hanging on the word 'freely', and ignoring the clause 'as long as ...'.
> Your argument might be, "the author used the words 'permission freely
> granted', so that overrides what comes next, namely the "as long as ..."
> part. But that's a silly argument even the most desperate lawyer wouldn't
> make.
>
> >The sensible, and proper way to do it is retain copyright in the name
> >of the group.State the product/design/etc. is the property of the
> >DIY-EFI group, and can be used by any member, subject to the
> >EULA, or whatever you want to call the "permission".
>
> Completely unnecessary, even in a legal sense. Copyright these days is
> *implied* without the need for a formal declaration. Just as it should
> be. The courts finally recognized that you shouldn't have to scribble
> your name or 'hands off' all over something to declare it yours. And the
> statement in the file, while not precisely worded, is still an adequate
> document to give the spirit of the permission granted. BTW, AFAIK there
> was never the intention to limit permission to diy members only, as you
> recommend above. It was I believe intended for use by *anyone* as long as
> they agreed to it's modest conditions.
>
> > What it
> > comes down to is what he has done is not technically illegal,
>
> This sounds familiar; are you an admirer of Nixon or Clinton? :)
>
> The simple facts are the 'usage agreement' stipulates that if you don't
> agree with it's terms, you don't use the goods. It doesn't expect or rely
> on that being inforceable with police power. It assumes that anyone
> reading it has enough honor to abide by the wishes of the authors.
> Whether that represents a 'legal contract' that is enforceable in the
> technical sense is irrelevant, since nobody intended going to court with
> it. But it's certainly close enough to be understandable to men of good
> will. The issue is therefore not technical clarity of the agreement. If
> the person approaching the diyWB info has any honor, and reads those
> conditions, and decides he is going to partake anyway but has no
> intention of honoring the conditions, then he's an untrustworthy dirtbag
> (IMHO, of course). And yes, it's not technically illegal to be an
> untrustworthy dirtbag, but it's a real good start. :)
>
> Whether someone could be prosecuted for breaching such a 'contract', or
> whether you could worm out of such an informal document with a good
> lawyer, is really not only beside the point, but is some sort of sad
> confession that you need those kinds of sanctions to guide you in
> honorable action. Like I said before, legal requirements can't make you
> honest; they presuppose most people are.
>
> My firm does contract engineering work in the industrial controls field.
> I review contract law *every day*, and although I'm not a lawyer, I do
> have gray-haired experience in what 'attitudes' are required by us
> writing contracts, in order to avoid trouble with clients in the future.
> I can assure you that focusing on what you might 'technically' be able to
> get away with, while overturning the obvious intent of the contract, is
> the *best* way to involve yourself in a lawsuit, not to mention
> identifying you to the rest of the trade as someone who cuts corners and
> can't be trusted to 'do the right thing' in addition to 'doing the thing
> right'. Even judges, technical sticklers as they might be, give *great*
> weight to the 'spirit' of a contract, in deliberating over disputes
> whenever things are poorly worded. I've seen it happen at least a couple
> times in my career.
>
> >I'm glad I can deal directly with the "authorized" supplier of the
> >board, rather than having to buy the "knockoff", either through
> ignorance or
> >necessity.
>
> 'Necessity'? Pardon me, but that's an interesting turn of phrase. So you
> wouldn't have any problem with buying a board from someone who doesn't
> have permission from it's authors to use even the circuit, if you
> considered that 'necessary'? I hope that doesn't mean your abiding by the
> usage agreement is simply a matter of convenience. That's a bit of the
> current problem, isn't it.
>
> Brian


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