Hacker 2/HACKER2.mdf/cud/cud443c.txt

Text File | 1995-01-03 | 14KB | 309 lines

Date: Thu, 10 Sep 92 09:14:49 EDT
From: [e-mail](Wes Morgan)
Subject: File 3--Re: Piracy/Social Context (#4.42)

>From-- James I. Davis <[e-mail]>
>Subject-- Software Piracy--The Social Context
>
>Anne Branscomb, a strong advocate of property rights in information --
>admits that there is nothing "natural" about property rights (see her
>essay "Property Rights in Information").  Property rights are social
>conventions that are struggled over.  And we shouldn't give up that
>fight to the SPA.

I disagree with several arguments used against said rights.

>Re: software "piracy" in schools, perhaps we should see an extension
>of "Fair Use Doctrine" to software use in schools. A bit of recent
>history -- broadcast TV shows were not intended to be copied and
>viewed at leisure at home. But to have stuck to that point, the courts
>would have criminalized a substantial number of adults who were
>time-shifting with their VCRs to watch soaps or football games or
>whatever.

Whoa!  That wasn't the deciding factor at ALL!  The decision was based
on the notion of "personal use".  As I understand it, the courts decided
that individuals could record programs for later viewing.  The court af-
firmed the copyright of the broadcasters when they disallowed rescreening
and/or rebroadcasting for profit.  Even though you can tape "Days of Our Lives"
for yourself, you CANNOT charge people to view, nor can you rebroadcast the
program on your local Public Access channel.

What's the difference between taping/rebroadcasting a TV show and
copying/redistributing software?  In each case, the initial step
(taping or copying, respectively) is legal FOR PERSONAL USE ONLY;
the second step (rebroadcasting/redistributing) is a violation of
copyright.

You'll notice that most software licenses allow you to make a backup
copy FOR PERSONAL USE ONLY.

>So "fair use", originally intended to allow book reviewers
>to quote from works, was de jure extended to a de facto reality --
>people "stole" TV shows, and enjoyed them. I understand that fair use
>extends to school use as well.

Here's a relevant quote:

"Section 107 of the Copyright Act establishes four basic factors to be
 examined in determining whether a use constitutes a "fair use" under
 the copyright law.  These factors are:

    a) The purpose and character of the use, including whether
       such use is of a commercial nature or is for nonprofit
       educational use;

    b) The nature of the copyrighted work;

    c) The amount and substantiality of the portion of the work used
       in relation to the copyrighted work as a whole; and

    d) The effect of the use in question upon the potential market for
       or value of the copyrighted work.

 No one factor is determinative of a person's right to use a copyrighted
 work without permission.  (EDUCATIONAL USE ALONE IS NOT SUFFICIENT TO
 MAKE A USE IN QUESTION A FAIR ONE.)"

[Source: "Questions and Answers on Copyright for the Campus Community", the
 Association of American Publishers and the National Association of College
 Stores, Inc., 1991]

We may agree that copying software meets criterion (a); the others are
more difficult to justify.  The crux of this particular problem lies in
criterion (d).  Copying software DEFINITELY affects the "potential market"
for that software; if I can copy it, I don't have to buy it!

>Why don't people just see that loaning disks, copying programs, etc.
>is wrong? Because it's not obvious, and it certainly isn't "naturally"
>wrong.

I disagree.  I find it painfully obvious that I should not take someone
else's property and redistribute it injudiciously.

>The SPA has to cultivate a mindset that isn't there.

Most of the license agreements I've read are explicit "right to use" licenses,
as opposed to a "transfer of ownership".  If you purchase a copy of the
software, you agree to abide by the terms of the agreement.  You can argue
the propriety of that agreement until you're blue in the face, but you still
have a legal obligation to abide by its terms.

The same notion applies to the terms of an apartment lease, a car rental con-
tract, or the deed to one's home.  Each of these contract contains several
clauses which bind the parties to certain limitations.

>You give
>me knowledge, you still have use of it; now I can use it too.

Computer software is not "knowledge".

I can certainly share knowledge with you; I can teach you everything there
is to know about Quattro Pro, WordPerfect, or Microsoft Windows.  However,
"sharing knowledge" does not include giving you something (the software it-
self) for which I do not possess redistribution rights.

>It's not like I stole your silverware or pinched your car. A
>rather noble attribute, sharing, is turned into a crime!

Sharing, while noble, only applies to those things which are yours.
As I mentioned earlier, the computer software you purchase is not
usually your property.

Would you make a copy of Webster's Dictionary and give it to a friend?
I don't believe that you would; most people would intuitively classify
such copying as "wrong".  The 'intangible' nature of computer software
(some say "It's just bits on a floppy disk") does not negate this "common
sense" approach.

>And we are
>all to be enlisted in this SPA scheme for policing property rights of
>software companies. No thanks.

Gee, why don't you just Xerox (tm) your entire printed library for me?
I guess that would be just fine, right?

>Property rights and information just don't go together:

If we accept this notion, why do we have patents?  After all, patented works
are just a tangible expression of a particular piece of knowledge.  Copy-
righted works are a tangible expression of another kind; why should they be
treated differently?

>(1) The enforcement of property rights in information requires a
>police state. The SPA encourages people to squeal on each other by
>calling an 800 number.

So?  Most major companies have a "graft and corruption" number.
Many government agencies (IRS, BATF) have similar facilities.  Even
local governments get into the act; do you have "CrimeStoppers" broad-
casts on your local TV stations?

>If the laws were enforced, I would bet that
>_most_ computer users would be guilty.

So?  This is starting to sound like "everybody does it, so it must be
allowed"......and that's a load of poppycock.

>Hence, the population is
>criminalized, and subject to police and court control.

It has been estimated that over 70% of US taxpayers attempt to mislead
the IRS on their yearly tax returns.  [Source: US News and World Report]
The IRS cannot audit every return, but they usually detect (and punish)
the worst offenders.   Does that "incomplete enforcement" somehow justify
the illegal actions of the unpunished offenders?  Hardly.

The SPA (or the Copyright Office, or whoever) will never have the resources
to police *everyone*.  I suspect that the 'software police' will eventually
follow the same principle as the IRS -- get the worst offenders.  In fact,
SPA's current actions reflect this trend.  They (the SPA) aren't going after
Joe Shmo and his Commodore 64; they're targeting the big corporations and
universities.

>Just because
>the laws aren't enforced in totality doesn't mean that they can't be
>used.

Are you trying to create a distinction between "a bootleg copy of Turbo C
on my son's PC" and  "copying Turbo C for everyone in my office"?  I don't
believe that you can make this work; in each case, the action is improper.
The fact that "my office" is more likely to be caught/punished than my son
is irrelevant; both cases are improper.

>(2) Enforcing property rights in information prevents the "storehouse
>of knowledge" from being used optimally.

I do not accept the equivalence of computer software and information,
but I'll address a few of these points anyway.......

>Hence society and civilization is held back.

With the growing number of "public access" computing sites, this may very
well become a moot point.  Many high school computer facilities have "public
hours" for their community(ies); many public libraries are establishing com-
puter facilities for their patrons.  I fail to see how "I can't get a free
copy of Lotus" impedes the progress of civilization.

>The lost productivity due to conflicting
>standards and interfaces required because of proprietary interfaces
>etc. is one example.

This is true; however, are you going to force each and every
company/school/person to adhere to some particular "nonproprietary"
interface?  If so, how do you hope to accomplish it?

>The lost educational opportunities resulting from
>schools not getting the software they need in the quantities they need
>is another.

I agree that this is a real problem.  However, many software companies
are now discounting bulk licenses for schools.  Inexpensive "student
versions" are available for many popular software packages, such as
WordPerfect, Maple, and MATLAB.

>The lost time of researchers who must duplicate research
>because they are prevented from sharing information because of trade
>secrecy or international competition is another.

Please explain how "globally free" software would affect this situation.

>The unavailability of
>textbooks in poor countries because they cost as much as a month's
>wages (or software that costs as much as a year's wages) is another .

Several publishing houses in the Third World pirate textbooks; since
their countries are not signatories to the Berne Convention, the original
publishers cannot recover their losses.

>(3) Property rights in information aren't needed to ensure software
>production, creativity, advancement of society, etc. The freeware and
>public domain library testify to this. People create for many reasons,
>of which financial gain is only one, and I would argue, not the most
>important.

People may create for many reasons, but *companies* create for financial gain.

>Finally, is the software
>industry profitable today? Yes.

It is profitable AT THIS TIME.  Will it continue to be profitable in
a society where piracy is allowed on any scale?  I doubt it.

>Even with the $24 billion in "piracy".
>How can this be so? Because what the software companies "lose" is
>revenue with no associated cost (the "pirate" has done the labor, and
>presumably provided the equipment and disk). This is the difference
>between stealing cars and duplicating software.

That's incorrect.

If I steal your car, you (or your insurance company) will have to pur-
chase a new one.  Honda (or GM, or whoever) has now given out TWO cars,
but they have recognized a profit on each one.

If I steal a copy of Lotus 1-2-3 (remember, you DO NOT OWN your copy;
you merely have a license to use it), I do not have to pay Lotus.  You
don't have to pay for another copy; you still have your original.  Lotus
has now (effectively) given out TWO copies, but they have only recognized
the profit from one copy.

That sounds like a loss to me........

>(4) But but but, how will software get written, who will finance it?
>Knowledge is a _social_ treasury, and should be funded socially.
>Public competitions, grants, a social fund supported by users,
>whatever. We have some models already: the university and federal
>research model; the arts funding model; the GNU experiment; the
>freeware and public domain experience. We're a creative and energetic
>group -- we can figure it out.

There's one topic which hasn't been addressed in this article; I rarely
see it addressed in any article on this particular subject.

The whole concept of copyrights (and patents) is based on the notion that
the creator of a commercial product is entitled to some compensation for
their effort.  With patents, this compensation is realized through an
exclusive production license for a certain number of years; with copy-
rights, this compensation is realized through a similar exclusive license.
(I believe that a personal copyright extends through the life of the owner,
plus a certain extension after the owner's death.)

By your arguments, I would not realize any significant compensation at all
for the software I develop.  In your society, I would just toss my product i
into the population, and we'd all live happily ever after.  That doesn't work,
and it isn't right!  If I pour 4 years of my life into the development of
SnarkleFlex, I DESERVE to profit from it (assuming that people want to
purchase/use it).

We could certainly argue that software should be PATENTED.  If software
were patented (instead of copyrighted), both sides could be served equally:

    - The creator (or creating firm) would receive an exclusive
      license for the initial production of the product (software).
      This would ensure that the creator(s) received compensation
      for their efforts.

    - After a certain period of time (10 years? 20?), the product
      would lapse into the public domain; it could then be redis-
      tributed freely.

As an alternative, previous versions of a particular package could lapse
into the public domain upon the release of a newer version.  For instance,
SnarkleFlex 1.0 would become PD upon the release of SnarkleFlex 2.0.  If
I've done a good job on SnarkleFlex 2.0, people will prefer it to version
1.0; they'll buy the new version, I'll realize my profit, and other people
can treat version 1.0 as PD.  In fact, casting SnarkleFlex 1.0 into the
public domain may actually CREATE new customers for version 2.0; after
using the old version, they may decide to buy the new version!

(Of course, I could also save money by dropping support for any versions
 that pass into PD status.  Many companies drop support for older versions
 on a regular basis; for example, I don't think you can get support for
 SuperCalc 3 at this time)

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