IPG and "Free Samples"

At 7:42 PM 3/20/96, Michael Froomkin wrote:
>correct me if I'm wrong, but don't the federal direct mail marketing laws
>say that any unsolicited merchandise sent to a person becomes their
>property, regardless of any disclaimers to the contrary included in the
>package?

The _physical_ item, e.g., a box of soap or a free copy of "Newsweek," but
presumably not the _intellectual property_, e.g, the contents of
"Newsweek."

(Just because I get free samples of magazines does not mean I now can do
with the contents whatever I wish, such as post them on the Net; copyright
law is presumably involved.)

This may be more analogous to what IDG has done.

Disclaimers: IANAL, I am not defending IDG or their "broken in less than
one day" tub of snake oil, nor am I defending copyright and direct mail
marketing laws. And I might be wrong about the intellectual property issue,
though I doubt it. Copyright laws are such that rights are not waived even
if free samples are given out, and so forth. IDG can hardly claim their
algorithm has trade secret status when they've distributed it to many
people. Which leaves them with only trying to enforce copyright
protections, a la the Church of Scientology. Maybe IDG will now seek to
collect the only bucks they'll ever get by suing various Cypherpunks who
are distributing their so-called system? Helena Kobrin can become their
lawyer.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

On Wed, 20 Mar 1996, Timothy C. May wrote:

> At 7:42 PM 3/20/96, Michael Froomkin wrote:
> >correct me if I'm wrong, but don't the federal direct mail marketing laws
> >say that any unsolicited merchandise sent to a person becomes their
> >property, regardless of any disclaimers to the contrary included in the
> >package?
> 
> The _physical_ item, e.g., a box of soap or a free copy of "Newsweek," but
> presumably not the _intellectual property_, e.g, the contents of
> "Newsweek."
> 
> (Just because I get free samples of magazines does not mean I now can do
> with the contents whatever I wish, such as post them on the Net; copyright
> law is presumably involved.)

However, there is a case to be made that a basic difference between a 
magazine, in this example, and source code exists.

The magazine itself is the instrumentality.  When it's mailed to you, you 
can give it to whomever you like.  The pages and paper are your property, 
along with the ink.

In the case of the code, it is itself the instrumentality.  Handing it 
out for free (unsolicited and without a binding NDA) might render the 
item itself (the code) public domain.  (Or more accurately, the 
act of so distributing it renders it defacto in the public 
domain).  Especially in the context in which this code was released.

I'm not sure it's a compelling argument in and of itself, but in the 
context of the manner of distribution, and the major goof on the part of 
IDG in releasing the material generally, I would suspect no one has much 
to worry about.  Asking for a public review of material, and then 
enforcing "copyrights" when that review releases some of, perhaps even 
all of the material is rather silly.  I'd be surprised if a court paid 
much attention.

Disclaimer: this is an academic, and not a legal opinion.

[Mr. May's disclaimer deleted]

> --Tim May
> 
> Boycott "Big Brother Inside" software!
> We got computers, we're tapping phone lines, we know that that ain't allowed.
> ---------:---------:---------:---------:---------:---------:---------:----
> Timothy C. May              | Crypto Anarchy: encryption, digital money,
> tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> Higher Power: 2^756839 - 1  | black markets, collapse of governments.
> "National borders aren't even speed bumps on the information superhighway."

---
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"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
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