Oliiver Deville wrote:I have provided the ICGA secretariat with the pre-Fruit versions of Rybka I have here.
These versions were meant to remain private, but I feel I have been cheated, and truth must be known.
It has elsewhere been suggested that Olivier committed an impropriety. Herein I describe my current knowledge of the situation. As the ethical question should be rather clear given the Crafty situation with the pre-Beta Rybka, I stick strictly to the legal.
1) Deville and Rajlich entered an (implicit) agreement, in which Deville would receive an original (and legal) engine from Rajlich for the purpose of said engine competing in the tournament run by Deville.
2) Rajlich did not give Deville such an engine, but rather gave him a illegal derivative engine.
3) After a considerable passage of time, events occurred which gave Deville grave suspicions that he had been cheated, and the engine entered by Rajlich was in fact
not original.
4) Lacking by himself the ability to determine this, Deville decided to convey a copy of the engine entered by Rajilch to a noted authority in the field, the ICGA Clone Investigations Panel.
5) The Secretariat of said Panel engaged two independent experts (Zach and myself), and conveyed a copy to each.
6) In the course of the investigations, said experts found much code that was [allegedly] copied from Crafty.
7) These experts (in conjunction with the Secretariat) notified the copyright owner of Crafty (namely Hyatt) of said violations.
8) Hyatt publicised these facts.
Unless you are to argue that Deville acted improperly in #4 (vis-à-vis the subset of non-copied code in Rybka 1.6.1), I don't see where any legal fault of his might lie [similarly with the Secretariat in #5]. For that, I adduce
fair dealing for the countries in question (note that computer programs are considered literary works, and the "countries in question" are those of the receivers):
Australia:
Copyright Act 1968, Section 40
Fair dealing for purpose of research or study
(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or study does not constitute an infringement of the copyright in the work.
UK:
Copyright, Designs and Patents Act 1988, Section 29
1)Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
USA:
Copyright Act of 1976, 17 U.S.C. § 107
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
There are standards in both the UK and Australia for deciding whether something really is "fair use", and they consist of considerations parallel to those enumerated above in the US statute.
It is my argument that the conveying of copies of Rybka 1.6.1 (by both Deville and the ICGA Clones Investigation Panel Secretariat) falls under this heading.
As an aside (and to state the blatantly obvious), even if one assumed there were an implicit NDA between Deville and Rajilch, it would be voided by the latter's failure to perform (see #2). So I do not see how one can argue that Olivier's action was improper.