Copyright in Shareware Software Distributed on the Internet { The Trumpet Winsock Case Cristina Cifuentes
Department of Computer Science University of Queensland Brisbane Qld 4072 Australia
[email protected] ABSTRACT
Since the 1980s most countries worldwide have introduced laws which extend copyright protection to computer software. In the rst Australian case to consider copyright in a shareware computer program distributed on the Internet, the court held that the Internet service provider OzEmail had infringed Trumpet Software's copyright in Trumpet Winsock 2.0B by arranging for the program and a set of altered data les to be distributed with other software on diskette as a give-away inserted in copies of computer magazines. The implications of this case for software developers, distributors, and users are presented.
Keywords
Copyright, Shareware, Internet Service Provider, Distribution, Intellectual Property.
INTRODUCTION
Trumpet Software Pty Ltd (Trumpet) is a Tasmanian company which develops, markets and distributes computer software. The founder and Managing Director of Trumpet is Mr Peter Tattam, who for 10 years up to September 1994 worked as a computer programmer in the Psychology Department of the University of Tasmania. During this period, but independently of his employment with the University of Tasmania, he created a program known as Trumpet Winsock, a Windows Sockets 1.1 compatible TCP/IP stack, which allowed Windows-based PCs to communicate with the Internet. The rst version of Trumpet Winsock, version 1.0A, was released in February 1994 and it rapidly gained an international reputation as the best available software for connecting to the Internet. Guides to the Internet published during 1994 and 1995 invariably advised readers to use Trumpet Winsock for Internet connection (e.g. [14, 1, 4, 10]).
Anne Fitzgerald
JSD Candidate Law School Columbia University New York, NY 10025
[email protected] This paper presents and discusses the recent Trumpet Software Pty v OzEmail Pty Ltd case. The case arose out of a dispute between Trumpet and OzEmail over OzEmail's distribution of the Trumpet Winsock software on diskette with computer magazines. OzEmail, which listed on the Nasdaq stock exchange in the United States in July 1996, is Australia's largest Internet service provider (ISP) with an estimated 100,000 active customers. The software in issue was Trumpet Winsock version 2.0B which was distributed by its owners on the Internet as shareware, through various means such as bulletin board systems (BBS) and le transfer protocol (ftp) sites, including that at the University of Tasmania, from which it could be readily downloaded by users. The distinguishing feature of shareware, as opposed to freeware and public domain software, is that it is distributed on a \try before you buy" basis and a modest donation is expected if the software is of use to the user [15]. Whereas the conventional means of software marketing requires users to purchase a shrink-wrapped and untried diskette, shareware marketing makes the software available to users without charge for evaluation before buying. Those who want to continue using the software at the expiration of the evaluation period (usually 30 days) must pay a registration fee to the owner. Various les in Trumpet Winsock 2.0B drew the user's attention to the fact that it was unregistered shareware which was distributed for evaluation purposes and that if the user wished to continue using the program after the 30-day evaluation period, it should be registered by paying the $25 fee. The paper is structured in the following way: we explain the protection of computer software under copyright law, followed by the origins of the shareware method of distribution, an explanation of the normal use of the Trumpet Winsock V2.0B program, the use of this software by OzEmail, the judge's conclusions on this case, and a discussion of the implications of this case to the computing community, in particular, to Internet service providers and software developers.
COPYRIGHT PROTECTION
Various systems of intellectual property can be used to protect computer software: copyright, patents, trade secrets and trademarks. Each of these types of protection has a di erent purpose: copyright protects the expression of an idea in the form of a program, patents protect applications of ideas that are proven to be innovative enough to be considered an invention, trade secrets protect the disclosure of a creation, and trademarks protect the name of a product or company that uniquely identi es such product or company. During the 1980s, many countries enacted speci c legislation extending copyright protection to computer programs as literary works. Literary work has been de ned to include not only traditional works such as books and poems, but also works such as object code programs. The practice of protecting software as literary works has been adopted in two recent international treaties; the agreement on Trade-Related Intellectual Property Rights (TRIPS) [18], and the World Intellectual Property Organization (WIPO) copyright treaty [19]. In Australia, a software developer's work (i.e. program) is protected under the Copyright Act 1968 [8] as a literary work from the moment of creation, without any requirement to comply with formal registration procedures. This type of protection provides software developers with the set of exclusive rights provided for literary works under the Act. In the case of Australia, section 31 of the Copyright Act 1968 provides the following set of exclusive rights to an author of a literary work [8]:
(a) to reproduce the work; (b) to publish the work; (c) to perform the work in public; (d) to broadcast the work; (e) to cause the work to be transmitted to subscribers
to a di usion service; (f) to make an adaptation of the work; and (g) to do any of the acts (a) to (e) in relation to an adaptation of the work.
Following recent amendments to the Copyright Act, Section 31(1)(d) also provides the owner of copyright in a computer program with the exclusive right to control the commercial rental of the program. Copyright is infringed when one of the acts included in the copyright owner's exclusive rights is done without the owner's permission, whether in relation to the entire work or a substantial part of it.
Since the recent High Court decision in Autodesk v Dyason [2] it is clear that to attract copyright protection, a computer program need not be expressed in a written form but may be stored in the form of electrical impulses on a disk, ROM or EPROM. Hence, computer programs in object code stored on disk or a chip are also protected by copyright. The reproduction right is exercised whenever a computer program is used, since use normally involves the intermediate reproduction of the program in the computer's random access memory (RAM). It is apparent that in the case of software, every use will constitute a reproduction which infringes copyright unless a licence, i.e. permission or consent [7], to use it has been obtained from the owner. The digital nature of computer programs, and the fact that any use of software involves intermediate copying, led the Australian Copyright Law Review Committee (CLRC) to recommend the introduction of certain exceptions to the copyright owner's reproduction right. It recommended exceptions for copying in the normal use of computer programs (e.g. when running the program), back-up copying of programs, and decompilation of object code programs for the purposes of error correction and interoperability [9, 5, 6]. The CLRC also recommended that the de nition of reproduction should be amended so that it clearly covers programs in object code. Under the current de nitions, an object code program is an adaptation rather than a reproduction of the source code program. Given that computing industry practice regards object code as a reproduction of source code, the committee recommended that an explanatory provision should be introduced to provide that, for a computer program, a reproduction includes, but is not limited to [9]: (a) an object code version of the program that has been derived from the program in source code by compilation; and (b) a source code version of the program that has been derived from the program in object code by decompilation.
THE EVOLUTION OF SHAREWARE SOFTWARE
The shareware method of marketing computer programs grew out in the early 1980s with the introduction of the IBM Personal Computer (PC) and the need of users to have software that runs on that machine. Most software available for this computer was of a commercial nature and users were unable to assess how good or bad the software was until they purchased it and tried it on their computers. At the same time, computer club librarians
were looking for software that could be shared with their members. In 1982, Jim Knopf [12] wrote a database program for the IBM PC and many friends were interested in it. He started giving it away for free to friends and colleagues at work and subsequently found that many people in his city had a copy of it. He kept a mailing list to be able to notify users of software upgrades and bug xes. As this was becoming costly, he decided to insert a notice on his program to tell users to send US$10 if they were interested in any future upgrades of the software (i.e. to be in the mailinglist). Against the odds of receiving any money for his software, this method became very successful almost immediately as users had the opportunity of trying the software before deciding whether they wanted it or not. Simultaneously, Andrew Fluegelman, a programmer in another city, had distributed his software on a \trial before you pay" basis; the payment fee was US$25. He was trialing this new way of distributing programs as a marketing experiment. Jim and Andrew decided to collaborate on this new marketing method of selling computer software, and the success of shareware followed. By 1986, the term freeware was considered a synonym for the term shareware [15]. In 1987, the Association of Shareware Professionals (ASP) was formed, with Jim Knopf as its rst Chairman. The ASP de ned shareware as \try before you buy", and this non-for-pro t organization strengthened the role of shareware as an alternative to commercial software. Members nowadays include software authors, publishers, vendors, and electronic bulleting board system (BBS) operators. In the rst half of the 1990s, shareware programs were very popular in BBSs and computer shops, which provided a good distribution mechanism: users/subscribers of BBSs could download shareware programs for free, while users at a computer shop would pay a nominal fee (normally between $2 to $10) for a copy of the software on diskette. The increased use of shareware programs was based on the increased reliance on software in oce and home computers; users are able to test the software to determine if it is what they need, if the price is within their budget, and whether the software is easy to use. With the increased usage of the Internet, and its worldwide coverage, shareware authors started distributing their software on shareware ftp and World-Wide Web (WWW) sites by submitting a copy of their program to the operator of the site. There are several wellknown shareware sites on the Internet, including SimTel, Garbo, Jumbo and CICA. These sites distribute shareware programs in the form provided by the author of the software, for di erent types of computers and operating systems, with Windows 3.x being the category
for which the largest number of shareware programs is available. Most shareware sites include search engines and lists of the software available at that site, making it easier for users to nd the type of software they are interested in. Most software distributed this way has been written by hobby-programmers or by programmers of small software houses; their prices are normally below $50. Several mechanisms are used by shareware authors to encourage users to pay for the software after a reasonable trial period (normally 30 days), including, releasing a scaled-down version of the software as shareware with the full-version available on payment, and releasing the shareware program without any supporting documentation. The most popular mechanism is time-locking the program so that after the predetermined trial period, the software stops working unless the user registers (i.e. pays for) it. In the last few years, with the increased expansion of the WWW and the extensive availability of companyowned WWW sites, shareware authors can advertise and distribute their programs directly on the Internet from their home page, without need for any intermediaries. This marketing scheme has allowed companies like Netscape to market their web browser throughout the world. Shareware software is no longer inexpensive software, as more and more commercial software companies distribute their programs on the Internet as shareware. For example, Netscape's browser is an example of time-locked software, with a 90-day trial period and a cost of $120. Photoshop, a sophisticated graphics package, used by professional computer designers, is an example of software available in a scaled-down version prior to registration. These more sophisticated shareware programs now include a comprehensive licensing agreement normally displayed on the computer's screen when the software is rst run (or everytime the software is run before registration is e ected).
THE TRUMPET WINSOCK SOFTWARE
Trumpet Winsock is a networking communications program for the PC and Windows operating system which allows a computer to connect to another computer, whether a BBS or an Internet service provider (ISP), using Windows sockets. Trumpet Winsock has been distributed in shareware mode and has been used worldwide for connection to the Internet and local universities. This software was the most recognized dial-in software used under Windows 3.x, and has recently been upgraded to Windows 95. In 1995, Trumpet released version 2.0B [17] of the software on the Internet by making it available on their ftp site. This version was distributed in zip format; the unzipped le was composed of the following 15 les:
readme.msg disclaim.txt install.doc install.txt winpkt.com winsock.dll tcpman.exe sendreg.exe pingw.exe services protocol hosts login.cmd bye.cmd setup.cmd
318 640 66,048 51,932 3,516 145,152 119,040 39,168 26,112 2,840 441 96 1,901 65 271
bytes bytes bytes bytes bytes bytes bytes bytes bytes bytes bytes bytes bytes bytes bytes
Since there is no installation program in this set of les, a user would normally read the le(s) readme.msg and/or install.txt (or its Word equivalent install.doc). The former le tells the user that this software is distributed in shareware mode and that the documentation is in the latter le. The introduction section of the documentation le tells users that the product has been released as shareware and that it has an evaluation period of 30 days. It requests a registration fee if the user nds the software of use; this registration fee ($25) is to continue the development and support of the software. The documentation then explains to the user how to install the Trumpet Winsock program, and how to run it. Usage of the scripting language, which allows users to create a login script to directly connect to a computer, is also explained [16]. It is pointed out in the documentation that many ISPs have written their own scripts for connecting to their site, and a sample le is provided with the distribution of the software (login.cmd). When the program is rst run, a setup screen is displayed asking the user for con guration information details to enable the TCP package. This information is stored in a newly created le trumpwsk.ini. Figure 1 shows the window normally displayed by the software. As can be seen, the copyright and shareware notices are displayed in this window. The program then connects the user to the Internet address previously speci ed (and stored in trumpwsk.ini). The documentation ends with information on how to register the program. By registering, a user gets a password and a username which replaces the UNREGISTERED VERSION notice on the main window (see Figure 1). Technical support is also available to registered users, as well as upgrades within the following 12 months. Version 2.0B of the software has a Send Registration option available in the File menu to automatically register a user by sending credit card
details in an encrypted way when the user is connected to the Internet. This option is executed by running the sendreg.exe program. Both user and multiuser licenses of the sofware are available. The last page of the documentation states that should a user want to distribute Trumpet Winsock with other programs, a suitable o er should be made to Trumpet Software International for their consideration [16].
OZEMAIL'S DISTRIBUTION OF TRUMPET WINSOCK
In late 1994, OzEmail contacted Trumpet regarding distribution of their Trumpet Winsock program in a forthcoming edition of the Australian Personal Computer magazine, and licensed distribution whereby OzEmail would include Trumpet Winsock in a software package diskette to be sold at a retail price of Au$50. In early March 1995, OzEmail faxed Trumpet a letter to con rm their understanding that they could freely distribute 60,000 copies of Trumpet Winsock 2.0 on the cover of the April issue of the Australian Personal Computer magazine at no commercial gain to OzEmail [11]. A week later OzEmail telephoned Mr Tattam to get an answer to the fax. Mr Tattam was concerned that the method of distribution used by OzEmail would lead to many people using the software without paying Trumpet the registration fee, and told OzEmail that he did not want them to distribute it in that way. However, he mentioned that he was working on a timelocked version of the software which he was to release as version 2.1, and that he would allow OzEmail to distribute it on the proposed terms. A revised fax was then sent by OzEmail for Mr Tattam to sign, however, Mr Tattam was not ready to reply or send the new version of the software until two weeks later when the timelocked version was completed. Since the magazine's deadline was due, OzEmail went ahead with its distribution plans. They not only distributed the software on the cover of the Australian Personal Computer (along with other shareware and freeware software) but also made it available on their ftp site. Despite protests from Trumpet through their solicitors, OzEmail distributed further copies with another magazine, Australian PC World, in August 1995. In both instances, the version of the software distributed was 2.0B|the unlocked version. Several data les from the original Trumpet Winsock distribution were modi ed by the ISP in order to allow direct connection to their site; these changes were:
Modi cation of the script le login.cmd to directly connect to the ISP;
Addition of the le trumpwsk.ini which included the ISP's details to directly connect to it; and
Figure 1: Trumpet Winsock Window
Modi cation of the script le bye.cmd which disconnects the modem.
These changes were made for the sake of helping users connect to the service provider, as most users would not fully understand the documentation provided with the Trumpet Winsock program. However, the distribution did not contain several important les which inform users that the Trumpet software is shareware; these were: readme.msg was
deleted from the distribution; install.txt was deleted; install.doc was renamed to trumpet.doc and an icon was made available to users to load this documentation le. However, the icon instructed the WriteNow program (instead of the Word program) to load the le, hence providing garbled data on the user's screen; and ozrego.exe and startup.wri were added to the distribution.
The deletion of these les prevented users from following the series of steps that the shareware author had anticipated in order to install the software. A user would normally read the readme.msg and/or install.txt (or equivalent install.doc) in order to install the software. In the ISP's distribution, these steps could not be followed as the software was modi ed by means of its data les. Even further, its documentation and registration les were missing, leaving the user without appropriate information to understand the terms of the shareware licence.
JUDGE'S CONCLUSIONS
Justice Peter Heerey held that OzEmail had infringed the copyright of Trumpet and Mr Tattam in Trumpet
Winsock 2.0B and had contravened the provisions of Part V of the Trade Practices Act 1974.
Infringement of copyright
Justice Heerey found that OzEmail had reproduced or authorised the reproduction of a substantial part of Trumpet Winsock 2.0B by two means [11]:
by downloading the program from the University of Tasmania's ftp site and reproducing it on OzEmail's ftp site, and by making or authorising the reproduction of Trumpet Winsock on diskettes distributed in the Australian Personal Computer magazine in April 1995 and in Australian PC World in August 1995.
Unless these acts were done with the consent or permission of Trumpet and Mr Tattam, OzEmail infringed copyright in the Trumpet Winsock 2.0B program. The issue thus was whether OzEmail had a licence from Trumpet to deal with Trumpet Winsock in this way. A licence arises when the copyright owner gives permission to another to do an act which would otherwise constitute an infringement [13]. Copyright licences may be express or implied and there is no requirement that a licence should be in writing, unless it is an exclusive licence. A licence may be implied from the circumstances in which the owner deals with the work or subject matter. Such a licence will only be implied where \business ecacy" demands it. Justice Heerey held that any licence which OzEmail may have had to use Trumpet Winsock was revoked in the conversation between Mr Tattam and Mr Urquhart (from OzEmail) on 10 March 1995. During that conversation, which occurred prior to the rst distribution of the software on diskettes, Mr Tattam expressly told OzEmail that he objected to them using Trumpet Winsock 2.0B. OzEmail argued that because Trumpet
Winsock had been distributed as shareware through ftp sites such as that at the University of Tasmania, a licence came into e ect which could not be revoked at all, regardless of how much notice was given. The judge rejected this submission, holding that the licence could be revoked at any time by Trumpet, and that this had in fact occurred. Justice Heerey also considered the alternative scenario, that is, if the licence to OzEmail had not been revoked by Trumpet, what its terms were and whether they had been breached. The Trumpet Winsock shareware licence gave users permission to use the program for 30 days for evaluation purposes, after which they were required to register and pay the registration fee if they wished to continue using the program. However, Trumpet argued that if the shareware licence also permitted intermediaries such as OzEmail to distribute the program to third parties, then the licence was subject to the additional (implied) conditions that such distribution should be [11]: 1. 2. 3. 4.
without other software; without modi cation, addition or deletion; in its entirety; and without charge and not for commercial gain.
On the basis of evidence from computer experts regarding the nature of the terms and conditions of shareware licensing, the court found that industry practice supported conditions (2) and (3) above and that the purpose of shareware distribution of software is to enable its evaluation by the potential user. Justice Heerey concluded that it is essential, that in the case of a distributor dealing with shareware, it be distributed in its entirety and without modi cation, addition or deletion. The whole purpose of evaluation is to enable the end user to evaluate the product as produced by the author. [Emphasis in the original] The judge rejected Trumpet's submission that the licence also included terms that the software was not to be distributed with, or accompanied by, any other software or that the distributor could not make any charge for commercial gain. Justice Heerey concluded that even if any licence in favour of OzEmail had not been revoked by Trumpet, OzEmail had breached conditions of the licence by the changes it made to Trumpet Winsock 2.0B. OzEmail made signi cant changes to Trumpet Winsock 2.0B
without Trumpet's permission, which would impact adversely on Trumpet's commercial interests. The e ect of the changes was that users were routed to OzEmail as an ISP, which had the potential to damage Trumpet's position as an independent marketer of software for Internet access and its commercial relationship with other ISPs. Also, the noti cation of Trumpet's rights to payment from users who decided to keep the software were seriously obscured. OzEmail's purpose in distributing Trumpet Winsock was not the evaluation of the program for its own use or distribution to other users for evaluation, but to use it as a free give-away to attract subscribers to its ISP service.
Trade practices
The court also held that OzEmail infringed the Trade Practices Act 19751. Firstly, as purchasers or readers of the two computer magazines would assume that the distribution of the diskettes containing the software took place as a result of some arrangement or connection between Trumpet and OzEmail, they would be mislead or deceived into believing that OzEmail had the permission, licence or authority of Trumpet to publish the software. Secondly, OzEmail's conduct would be likely to mislead or deceive readers of the computer magazine and users of the programs on the diskette into believing that it was not necessary to obtain a licence from Trumpet to use the software. A number of factors combined to create this impression: the reference in OzEmail's brochures to \free software", the fact that Trumpet's shareware message was obscured and the emphasis on the registration fee of $25 payable to OzEmail while failing to make it clear that a fee of the same amount was required to be paid to Trumpet.
IMPLICATIONS OF THIS CASE
The decision in Trumpet v OzEmail is a signi cant one, being the rst Australian and worldwide case dealing with copyright in a computer program distributed as shareware on the Internet. It has obvious implications Section 52(1) provides: A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 53 provides: A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services ... (c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or bene ts they do not have; (d) represent that the corporation has a sponsorship, approval or aliation it does not have; ... (f) make a false or misleading representation concerning the need for any goods or services; ...
1
for ISPs and other distributors of shareware programs and will require them to exercise more vigilance in the way they deal with shareware. Many software companies are now using the Internet to distribute their products and the proportion of software sold on the Internet rather than in the form of a shrink-wrapped disk can be expected to increase. Internet distribution is particularly suitable for smaller, cheaper programs with a limited lifespan. Probably the best known example of Internet software distribution is Netscape, which made the initial version of its Netscape Navigator available for free on-line, enabling it to rapidly build its position as the leading web-browser software. In the absence of secure payment mechanisms, much of the software distributed on the Internet is marketed as shareware, allowing potential purchasers to test it for a speci ed evaluation period before registering as a user and paying for it. The court's judgment makes it clear that
Copyright continues to subsist in computer programs distributed (as shareware) on the Internet. Contrary to OzEmail's submission, that the copyright owner could no longer exert control over the software once it was distributed as shareware on the Internet, the court's judgment rearms that software developers do not \lose" copyright by distributing software in a digital medium such as the Internet, but continue to enjoy the exclusive rights set out in the Copyright Act. In other words, the medium used for distribution of the software does not alter the rights that a software developer has over his own work. In cases dealing with a new transmission medium such as the Internet, courts can imply licences based on industry practice. A licence will be implied if it is necessary for business ecacy and is so obvious that it \goes without saying". In this case, the judge implied a licence for the redistribution of the shareware program; a shareware program can be (re)distributed by intermediaries provided it is distributed in its entirety, without modi cation, deletion or addition, so that users can evaluate the software as provided by its author. The court accepted that intermediaries may charge for redistribution of software on di erent mediums, such as oppy disks and CDs, to cover costs of the medium, time involved, and advertising. Bare licences are subject to revocation without notice. Where, as here, there is no contract between the parties the shareware licence is a bare licence, that is, a mere permission to distribute the software. If the user were to pay the registration fee,
the shareware licence would become a contractual one. However, a bare licence can be revoked by the licensor at any time. Revocation does not need to be in writing; it can be done in a phone conversation (as in this case). The question of whether reasonable notice is required for revocation was not raised in this case, although the judge indicated that he would have been prepared to hear submissions on it. In the Trumpet case, since permission was being sought for future use, there was no requirement for reasonable notice to be given of revocation. As a result, if a user requires a guarantee against revocation of the licence at short notice, they should enter into a contract with the software owner setting out the situations in which a licence can be revoked and the period of notice required. In this case, OzEmail chose not to enter into a contract but to rely on the bare licence of the generally available shareware version of Trumpet Winsock.
Reproduction vs Publication vs Distribution rights. In this case, the only exclusive right which was considered was the right to reproduce the work in a material form. What Trumpet were most concerned about was to prevent the unauthorised distribution of Trumpet Winsock. However, under Australian copyright law, the copyright owner can control the reproduction and the publication2 of a work, but there is no general distribution right unlike the position in the US Copyright Act. A distribution right would give the copyright owner the right to distribute copies of the work, whether by sale, rental or lease.
Moral rights. The question of whether moral rights should be extended to computer programs has been raised in recent years. Given that computer programs are protected under copyright law as literary works, any moral rights that apply to literary works could also be expected to apply to computer programs. Australian copyright law currently provides some limited recognition of moral rights: when a person other than the author alters a copyrighted work, that person is not allowed to publish, sell or hire the altered version of the work, or to falsely attribute that version to himself. In the Trumpet case, the alterations done to the software by the ISP creates the erroneous impression to users of the software that Trumpet had entered into an
2 Under Australian copyright law, a reproduction is a copy of the work in any (material) form; e.g. a copy of a program onto a CD, oppy disk, ROM, etc. Publication involves making copies of a work available to the public (whether by sale or otherwise). The publication right has been interpreted narrowly by the High Court in Avel Pty Ltd v Multicoin Developments Pty Ltd [3] as meaning to make public a work which has not previously been made public in that copyright territory.
exclusive agreement with OzEmail as its favoured ISP. This could be seen as prejudicial to Trumpet's reputation. The Australian government is in the process of introducing more extensive moral rights, including a right of integrity, and has indicated that computer programmers will be treated in the same way as authors of other literary works in this respect. This case also raises ethical issues in relation to the use of shareware programs. An ISP is a commercial organization which is interested in attracting users to its Internet service. Since users need a series of software programs to connect to the ISP and to navigate the Internet, the ISP makes shareware software available at a nominal price (i.e. the costs of the reproduction of the software on diskette(s)). However, a great percentage of users do not fully understand all the computing terminology associated with connecting to the Internet or navigating it. Most users simply follow the set of instructions provided by their ISP in order to connect to the ISP, receive and send email, access a web page, etc. Unless brought to their attention, the shareware messages which appear in most shareware programs are irrelevant to the series of steps users need to follow to connect to the ISP or to run a mailer program. Users are often afraid of trying out options available in the program's menu due to their lack of con dence in the use of computers|they know what sequence of steps will let them do a prede ned action (normally learnt from the ISP's documentation guide) and they do not know how to recover from an error when following a series of steps di erent to that documented for them. Informal discussions with users of shareware programs distributed to them by their ISP indicate that many do not have an understanding of what shareware means or that a registration is expected for continued use of the software. Most point out that when rst connecting to their ISP they were told that they only had to pay a registration fee to the ISP and an hourly or monthly fee for the hours of connection time; at no stage is the cost of the software mentioned, hence they regard it as included in the ISP's registration fee. Clearly, with the continued increase of users on the Internet, organizations providing this service need to be more responsible in not only making users aware of the shareware programs they have to pay for, but also in educating this new group of users who are not familiar with computing terminology and do not understand the shareware concept.
CONCLUSIONS
This case establishes the principle that software developers do not lose their copyright protection when releasing software as shareware|either on diskette or on
the Internet. In particular it makes it clear that copyright subsists in a work regardless of the medium used to distribute it. The court implied a licence regarding the redistribution of shareware software and, based on normal practice in industry, they found that shareware can be distributed so long as it is in its entirety, without modi cations, alterations or deletions. Software developers that do not want their software to be redistributed along with other software need to specify so in the licencing conditions of their software. It is now clear that Internet service providers should take care in redistributing shareware software. They need to make it clear that the software is provided on a trial basis and that the user will eventually need to pay for it if continuing their subscription with the ISP after the rst month.
REFERENCES
[1] D. Alexander and J. Preisler. Infosur ng through the Net. Avon Books, New York, 1995. [2] Autodesk Inc v Dyason (No 1). 22 IPR 163, 1992. [3] Avel Pty Ltd v Multicoin Developments Pty Ltd. 18 IPR 443, 1990. [4] M. Bride. Teach Yourself the Internet. Hodder Headline, London, 1995. [5] C. Cifuentes and A. Fitzgerald. Reverse engineering of computer programs: Comments on the copyright law review committee's nal report on computer software protection. Journal of Law and Information Science, 6(2):241{276, Dec. 1995. [6] C. Cifuentes and A. Fitzgerald. Australian recommendations on computer software protection. Accepted for publication, to appear: The Computer Journal, 1996. Also as Department of Computer Science, University of Tasmania, Technical Report R96-3, February 1996. [7] Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd. 20 FCR 46 at 49, 1988. [8] Copyright Act 1968 (Cth). [9] Copyright Law Review Committee. Computer Software Protection. Oce of Legal Information and Publishing, Australian Capital Territory, Apr. 1995. [10] G. Ebbs and J. Horey. The Australian Internet Book. Woodslane Press, Sydney, 1995.
[11] J. Heerey. Trumpet Software Pty Ltd v OzEmail Pty Ltd. Federal Court of Australia, Tasmania District Registry General Division. Unreported judgement No. TG 21 of 1995, 10 July 1996. [12] J. Knopf. The shareware story. http:// www.halcyon.com/knopf/history.htm, 1987. [13] J. Lahore. Copyright Law. Butterworths, 1988. [14] J. Levine and M. Levine-Young. More Internet for Dummies. IDG Books, 1994. [15] D. Longley and M. Shain. Macmillan Dictionary of Personal Computing and Communications. The Macmillan Press Ltd, London, 1986. [16] P. Tattam. Trumpet Winsock Version 2.0. Trumpet Software International Pty Ltd, Hobart, Tasmania, Australia, 1994. [17] P. Tattam. Trumpet Winsock version 2.0b. twsk20b.zip, Mar. 1994. [18] Agreement on Trade-Related Aspects of Intellectual Property Rights, Dec. 1993. [19] WIPO copyright treaty. http://www.wipo.org/ eng/diplconf/distrib/94dc.htm, Dec. 1996.
