[mythtv-users] MS media center

[Christopher Meredith]

On Sun, Feb 28, 2010 at 3:48 PM, Chris Petersen <lists at forevermore.net> wrote:
> On 02/27/2010 07:51 AM, Christopher Meredith wrote:
>> According to the page linked above, SD does more than simply meet its
>> expenses. While I agree with and approve of everything they do, it
>> doesn't follow that I should have to pay them. There are many causes I
>> sympathize with, but I don't give them money. That should be my
>> choice.
>
> SD cannot operate as a nonprofit entity if we simply "meet our
> expenses".  A nonprofit has to provide something to the community -- if
> all we do is collect fees in exchange for some data, that makes us a
> commercial reseller in the eyes of the IRS.  Thus, we DO NOT DO THAT.
> We collect membership fees (official terminology is a "program fee")
> that go to support programs that benefit open source software and other
> not-for-profit enterprises.  As the member, you then gain access to the
> member benefit of scheduling data that we license from TMS (in the same
> way that as a member of a non-profit theatre group, you would get
> discounted/free access to plays that the theatre puts on).
>
> Yes, SD is currently saving money instead of moving forward with some of
> the programs that we have lined up (the two primary ones being free data
> for MythTV users of Cable in the Classroom, and a grant program for FOSS
> software development).  We still haven't heard back from the IRS about
> our 501(c)(3) tax-exempt application.  If we are denied, we will still
> move forward with those programs but we will owe a LOT of back taxes
> (and penalties).  I would rather delay using our funds to support FOSS
> than to see SD dissolved for inability to pay taxes (or worse, have
> those of us involved in the project end up in jail).
>
> FWIW, I believe that the *data format* that you are downloading can also
> be considered to be a creative work.  Even if the data itself might be
> "factual" (e.g. the title of a program on channel 2 at 5pm),
> presentation of that data can be covered by copyright.

Possibly, but I doubt it in this context. For TV listings, there is
nothing even minimally creative about specifying the channel, name,
and time of certain programs. Indeed, there is really no other way to
provide TV listings. It's the equivalent of organizing a phone book
alphabetically by last name, which is not copyrightable. Feist
Publications v. Rural Telephone Services. The xml itself is a standard
format and again, the delivery of the non-copyrightable content in a
non-copyrightable format does not make the resulting data
copyrightable.

>
>> Yes. All are agreed that it violates the TOS. The point is, so what?
>> I'm not a party to it so what does it matter?
>
> How are you not a party to it?  You are either a legit owner of MCE, in
> which case you accepted the EULA and are accessing the MS data service
> with an unauthorized piece of software, or you do not own MCE but are
> still accessing the MS data service with an unauthorized piece of
> software.  The TOS applies to the data service, NOT MCE.  This is why
> websites have terms of use -- you are a party to them by using the
> website, regardless of whether or not you agreed to them, they are
> posted publicly and it is your responsibility to accept them (IANAL, but
> I'm pretty sure this has been held up in court enough times to set
> precedent).

This is distinction between the so-called "browse-wrap" licences and
"click-wrap" licensces (both deriving their names from "shrink wrap"
licences; you know the ones that say "By opening thi package you agree
to the following terms..."). Browse-wrap licenses are the type that
you have to look for, usually by a link in the page footer. Click-wrap
licenses are the ones that pop up and don't let you continue until you
click "Accept." The rule is that Click-wrap licenses are enforceable
contracts against the person who "accepts" them, while browse-wrap
licences are not. In this case, at best, we're dealing with a
browse-wrap license for a person who does not own MCE and who has not
accepted its EULA. I say "at best" because in my case, I have not even
ben officially presented with the EULA and even if I were, I would
reject it. If I had to "click through" the EULA to get data from the
MCE servers, it would be a different story.

A EULA is a form of a unilateral contract of adhesion. The terms are
not negotiable and the contract is indiscriminantly offered and
becomes enforceable against anyone who accepts it. If I don't accept
it, its terms do not bind me. From a legal standpoint, EULAs and TOSs
are governed by the basic principles of contract law. If I'm not party
to the contract, it doesn't matter what the contract says. Using
mc2xml does not make me party to Microsoft's contract. Short of
conscious acceptance of the terms, nothing in the EULA is relevant to
me.

>
>>> When someone provides you with something of value, you reciprocate.
>>
>> And in most cases, I do. But I'm not using SD so it's not like I'm
>> stealing from them. Besides, SD wasn't the only one to jump in and
>> make sure EPG data continued to be available. The author of zap2xml
>> (and then mc2xml) did so as well.
>
> Both of which cause the users of said applications to violate the TOS of
> the websites/services they get the data from.  It may not be stealing,
> but it's certainly immoral.
>
> -Chris
>
>
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