Cool Mac Gear

The Business Software Alliance has its proverbial knickers in a knot over a new survey, released May 29, indicating that more than one third of American Internet users have downloaded commercial software online, yet have failed to pay for all the copies they have made.

This is hardly earth-shattering news. Here in Canada, where I live, studies indicate that some 37% - 56% of business software in use is pirated. More depressing news for the BSA, is found in a survey by Canada’s Decima Research that indicated 43% of Canadians condone software piracy (closely corresponding to the national piracy rate), and that falsifying resumes and stealing chocolate bars were popularly considered more serious than software piracy here in the Great White North. Only 20 percent of respondents said they would report someone for unlawfully copying software.

This latest BSA survey of 1,026 Internet users found that nearly half have downloaded commercial software at some time, and that 81 percent of them have failed to pay for all the copies they made. In fact, 57 percent of those who have downloaded software either seldom or never pay for the copyrighted works they download, according to the study conducted by Ipsos Public Affairs. Twelve percent admitted to committing software piracy.

“This is the first time we’ve identified end user attitudes about online theft,” said Robert Holleyman, president and CEO of BSA in a press release. “And what we found is a disturbing behavioral trend that violates copyright laws and costs billions of dollars and hundreds of thousands of jobs every year.” Yet, despite Internet users’ behavior, the survey also showed that an overwhelming number - 95 percent - believe software creators should be paid for their work. And 85 percent believe strong intellectual property protections are crucial for protecting the revenues companies depend on to fund research and development. Hmmm; a case of “do as I say, not as I do,” I guess.

Now, let me clarify here that I don’t advocate software piracy. I consider it to be more of a misdemeanor than a high crime, but it’s not fair ball. If you don’t want to, or can’t afford to, pay the substantial tariff for a registered copy of Microsoft Word or Adobe Photoshop, there are a number of much cheaper, or even freeware alternatives.

For example, I’m a computer professional of sorts, but none of the software I use for day to day production work sells retail for more than 50 bucks except for $99 Nisus Writer, and quite a bit of it is legitimate freeware:

Email: Eudora 5.1.1 (ad-supported freeware); Nisus Email ($29.95); SweetMail ($28.00)

Browsers: iCab (beta -- will be $29.95 with free lite version); Mozilla (freeware); Netscape (freeware); OmniWeb ($29.95); WannaBe (freeware)

Word processor: Nisus Writer ($99 - freeware older version also available)

Text editor: Tex Edit Plus ($15); BBEdit Lite (freeware)

Graphics: Color It! 4.1 ($49.95)

Desktop Database: Notepad Deluxe ($25); Znippetizer ($15)

FTP: Vicom FTP Client (free shareware version); RBrowser Lite (freeware)

ThinkFree office also offers a full, MS Office compatible productivity suite for $50 a year. In any category listed above, except for graphics and databases (that I know of) there are very usable freeware alternatives available, so arguments for piracy from “necessity” ring pretty hollow. And if you’re really into free software, Linux distributions like SuSE and Yellow Dog come with literally thousands of free applications.

“This survey shocks the conscience, further illustrating that fighting piracy needs to be elevated to a higher priority,” said Robert Holleyman in an earlier press release about an earlier survey. “For example, while the average “inventory shrinkage” (losses from shoplifting and other sources) for the U.S. retail sector is less than 2 percent, the software industry loses 27 percent in the U.S. while worldwide losses average an alarming 40 percent. These losses have serious negative implications well beyond the industry, stealing jobs and hurting customers,”

I don’t disagree with Mr. Holleyman on the essential issue; you should pay for software if the developer sets a price. However, I find it difficult to whomp up much moral outrage over casual software piracy at the individual user level. I get a lot more exercised over the siege against personal freedoms being mounted these days in the name of copyright protection. For a good summary of what I’m talking about, please read this excellent column on the topic posted on MacOpinion by Marc Zeedar. I also take industry losses to piracy estimates with a large grain of salt, because they presumably assume that each pirated installation represents a lost sale, whereas I would guess than considerably less than half of pirated business software would be purchased if piracy were to miraculously cease.

I do know people who consider it a point of honor (?) to never pay for any software, but these folks are usually “collectors” who hang out on Hotline or Carracho, and, in my observation, they rarely use the software they filch very extensively, if at all. They’re too busy cruising the cyber Spanish Main for more booty to download. Even as a subculture, I can’t perceive these folks as being a serious drain on software developers’ balance sheets. Very few of them would likely buy any of the software they pilfer if piracy became impossible. They would just find another hobby.

However I think that a larger and larger proportion of mainstream technology consumers are just getting mightily pissed off at escalating copyright fascism by greedy corporate interests who care nothing about their customers’ user experience, and want to dictate top-down the conditions under which technology will be used. Under the circumstances, it’s hardly a mystery why some users, perhaps subliminally, consider piracy a way of getting even with the corporate copyright bullies, while simultaneously affirming the principle that content creators should be paid.

So the problem for Mr. Holleyman and his colleagues is that while their consciences may be “shocked,” obviously the consciences of vast numbers of computer users worldwide are not. For example, when my son was operating a Mac service and repair business, I don’t recall one customer’s computer he worked on here, save for brand new ones, that did not have pirated software on its hard drive, and this includes machines owned by lawyers, clergy, and schoolteachers.

Canadian copyright laws prohibit duplicating software without permission, making multiple unauthorized copies for use by different users within an organization and giving an unauthorized copy to another individual. Individuals or businesses caught with pirated software are at least theoretically liable to criminal penalties for copyright infringement, including fines up to $1 million and jail terms up to five years, or both. Still, neither these draconian penalties nor their personal sense of ethics seem to inhibit that 40-odd percent Canadian piracy rate. Why?

Mr. Holleyman’s protestations notwithstanding, and while few people (12 percent of Americans, apparently) will outright candidly admit to being pirates, I think that many people are able to draw a distinction between “it’s against the law,” and “it’s wrong,” when the focus for determination is copyright legislation, which more and more individuals are perceiving as unjust in its currently operative forms -- the execrable Digital Millennium Copyright Act for instance. These laws (particularly the DMCA) were never subjected to widespread public debate or a democratic mandate, which calls into question their moral legitimacy in a culture that prides itself on democratic accountability and representation, at least in theory.

According to a PC World article this week, the BSA opposes the Consumer Broadband and Digital Television Promotion Act. a draconian copy protection bill that Senator Fritz Hollings (D. - Disney) is trying to push through the Senate as a front man for certain industry interests who have contributed handsomely to his campaign kitty. Actually, the BSA’s opposition to the Hollings Bill is less than vigorous and highly nuanced. See this press release.

Lukewarm opposition to the worst regulatory excesses notwithstanding, the BSA and the companies they represent are not going to be able to avoid getting sideswiped by consumer anger over high-handed efforts by truly aggressive copyright fascists like the RIAA a and MPAA to ruin computing and the Internet through imposition of harsher copy protection laws and hobbling technology protocols, at least once it finally dawns on the great, unwashed, tech-illiterate masses how badly they're getting screwed, but tragically it will then probably be too late.

Mr. Holleyman implies that software piracy is directly equivalent to theft of real property. Well, not quite. For one thing, literally millions of people who would never dream of shoplifting a book, music CD, or packaged software item, seem to have no ethical qualms about photocopying articles and book content, and making unauthorized music or software copies. How do we explain this? I think one reason is that going into a store and pocketing a tangible piece of physical property is perceived as something quite different from copy piracy. Another is that in the case of shoplifting, the author or recording artist does still get paid -- it is the retailer who gets ripped off, so the BSA’s analogy is faulty. Yet another is that the human mind finds the concept of intellectual property considerably more abstract, slippery, and nebulous than the concept of physical property. I think it would be accurate to suggest that when most consumers buy a book or CD recording, their gut perception is of having purchased a physical item, more than the concept of its intellectual content. Of course, with say, a CD, the cost of the physical medium represents a small fraction of the purchase price, but that gut-perception is still that property is something one can touch, even for people who intellectually know better.

Others would argue that whatever the law says -- breaking it is always wrong. That is a philosophical stance with considerable integrity, but it founders in the instance of unjust laws, and the DMCA, for instance, is a prima facie example of an unjust law. History is littered with bad legislation, and many laws have been downright immoral. It’s just not that simple.

Particularly in the area of laws governing commerce, the law usually has more to do with protecting vested interests that enjoy a political constituency then it does with absolute morality.

Listening to rhetoric from folks like Mr. Holleyman and the RIAA, you might infer that copyright laws had been handed down on stone tablets by the Almighty. They were not, of course, and not everyone in the world bestows upon the abstract concept of intellectual property rights the quasi-religious reverence they are accorded in litigation-happy North America. Copyright laws are merely an arbitrary and mutable legislative construct, and do not necessarily carry any objective moral weight.

The view that “theft” of intellectual property is tantamount to grand larceny of the highest order, that should be subject to commensurate penalties, is a reflection of a particular philosophical mindset, but unlike theft of real, tangible property, it involves a necessary value judgment.

The concept of real property and social/legal/ethical proscriptions against its theft have been developed over thousands of years of common-law consensus, but the much more abstract concept of intellectual property, and particularly copyright, has no such ancient tradition or consensual basis. It was imposed arbitrarily from the top down at the behest of vested interests, and thus has far less social legitimacy (although again, I’m not suggesting that there should be no protection of intellectual property -- only that the version that has been imposed is not necessarily an ideal or just one).

Philosophically, I don’t buy the notion that intellectual property is equivalent to real property in the sense of unauthorized use. If someone makes an unauthorized copy of an article I write, I have not lost possession of the article myself, and I can still sell it. If someone steals my car or computer, I have suffered real loss, not just hypothetical loss. I don’t doubt that the BSA and the music/movie copyright cartels are perfectly within their legal rights in their copyright fascism -- and here is where we step into the philosophical arena with both feet -- my argument is that being legally right does not automatically cede one the moral high ground, particularly in an area as abstractly elusive as copyright ethics.

“Internet users recognize the value of intellectual property,” Mr. Holleyman asserts. Now we need to continue our efforts to help them understand that illegal downloads do serious harm to those very companies and developers they believe in protecting. Through education, enforcement and policy, I am confident that we can help change these attitudes and create an atmosphere in which strong online copyright protections can flourish.”

Don’t bet on it, Mr. H. This fight is ultimately about money and power and control vs. freedom -- over what you will be able to see and read and watch and listen to, and how it will be delivered, and who will make money from it. It is about protection of vested interests vs. preservation of the common good, not just protection of artists’ intellectual property.

The operative issue is not whether or not making unauthorized copies of copyrighted material is a crime. Under existing copyright legislation it is -- unambiguously. However, there is a common law aspect to the development and evolution of legal conventions, and when schoolteachers and college professors routinely photocopy copyrighted material to use in class, and advise their students to do the same; when ministers of religion routinely photocopy copyrighted material to distribute in church services; when everybody and their dog photocopies stuff from magazines and library books for personal reference or to hand out to their friends (not to mention all the stuff that gets scanned into computers and distributed over the Internet); I submit that the law is no longer working or workable.

The original U.S. Copyright Act granted copyright-holders “the exclusive right to print, publish, and sell a copyrighted work” for fourteen years with a second fourteen-year term possible, “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”. Rather than representing some sort of categorical moral imperative, copyright legislation is rooted in monopolism and censorship, and has, in our time, been expanded in scope far beyond its original intent. In an era of digital communication, I also submit that it has been expanded well beyond its moral justification, enforceability and sustainability, and now principally serves selfish and regressive commercial interests.

Why should the private interests of greedy corporations put the kibosh on entire technologies that offers a benefit to the common public good? That is what happened with Digital Audio Tape, which had the recording interests wetting themselves in fearful anticipation of easy, unauthorized, high-quality copying of music until they successfully and selfishly lobbied in the name of copyright protection for restrictions that effectively killed the technology for widespread use, even though it would have offered many legitimate benefits that had nothing to do with piracy. Meanwhile, MP3 technology was ramping up to blindside them, with consequences we’re all now well aware of.

Our hard-won freedoms are far more important than the particular vested interests of record companies, rock bands, and software developers.

“Though many may not realize they’re breaking the law, it’s clear that a large number of Internet users who download software make ‘situational’ decisions about whether to pay for it or not. When asked if they would consider downloading a commercial software program to save money - even if it might be an unlicensed or pirated version - almost half of them say it would depend on the circumstances.” said Mr. Holleyman in the BSA release, further contending that this “alarming degree of online consumer piracy” points to the need for enhanced education and enforcement programs aimed at maintaining a safe and legal online world for both consumers and software creators.”

Does Mr. Holleyman really believe that a significant proportion of software pirates don’t realize that what they’re doing is against the law? I’ve never met one who didn’t. A couple of years ago, the Recording Industry Association of America conceded that “the Internet culture of unlicensed use means that theft of intellectual property is rampant... Unauthorized Internet music archive sites using compression technology such as MP3 provide illegal sound recordings online to anyone with a personal computer. They can be downloaded and played indefinitely, without authorization of or compensation to the artists... What is certain is many individuals see nothing wrong with downloading an occasional song or even an entire CD for their personal use, despite the fact it is illegal under the recently enacted NET Act.”

BSA Vice President of Enforcement Bob Kruger notes that several factors contribute to the pervasiveness of software piracy online, including the growing number of Internet users, increases in bandwidth and transmission speed, the popularity of Internet auction sites, and the heightened sense of anonymity when consumers commit piracy at home. “It’s clear from this study that while people may understand that software developers depend on licensing fees to create their works, they don’t appreciate how their own conduct undermines this creativity,” Kruger said. “We need to explain how their actions contribute to lost jobs and lost investment in new and innovative products. A big part of stopping piracy is correcting the misconceptions.”

Well, again, I'm not so sure. There’s plenty of creativity in the Open Source software movement, and some of the applications I find most useful are freeware. There doesn’t seem to be any shortage of cool, new software products emerging from either the Open Source or the commercial software sectors. At least its hard to perceive any crisis that would justify the sort of totalitarian response as found in the Hollings Bill.

The BSA is boosting its "education efforts" aimed at "enlightening" users about software ethics and compliance. The organization recently partnered with Weekly Reader to create an educational curriculum about piracy and safe software use for U.S. and Canadian elementary and middle school classrooms. Last year, BSA was also awarded a federal grant to raise public awareness about cybercrime, with particular emphasis on school-age children.

Hey, knock yourselves out, guys. I still maintain that even most kids are already aware that software and music piracy is illegal. So is underage drinking, but that doesn’t stop most teenagers from indulging.

Are we to have a free exchange of information or not? As with free speech and having to hold our noses and put up with people saying things we may revile and find offensive, if maintaining free information conduits on the Internet and personal sovereignty over how we control what goes on our hard drives means that music and software publishers will have to put up with piracy, I say so be it. The benefit to the common good far outweighs the problems it causes for vested interests.

While I’m not a laissez-faire piracy advocate, I do believe that there is an ethically defensible, philosophical ground for opposing the current draconian regime of copyright regulation without becoming an advocate for thievery.

The self-righteous BSA, music cartel and movie industry folks might be well-advised to engage in some introspection about ethics themselves. For example, many people, this writer included, believe that the Digital Millennium Copyright Act, which was lobbied strongly for by the software and movie industries, is one of the most heavy-handed and unjust pieces of legislation that has ever been enacted by the U.S., as the recent ordeal suffered by the DMCA’s first victim, Russian programmer Dmitri Skylarov, amply illustrates. Remember, it was BSA member Adobe that originally sic-ed the feds on poor Dmitri.

I don’t think that an adequate ethical framework has been hammered out yet with regard to copyright in the digital era. My point is not that content producers should not be fairly compensated for their work, and I do encourage you to pay those shareware fees. I would have been a lot more comfortable with Napster (I was only a very occasional user anyway) if there had been some sort of mechanism in place to pay the artists a small royalty per song downloaded. But the DMCA tramples traditional fair use rights underfoot, and tilts the balance of copyright protection lopsidedly in the favor of corporate interests.

There are many who acknowledge and affirm the justice of copyright protection as it was originally conceived and implemented by the U.S. Founders, but who perceive it as having been distorted and adulterated by commercial interests to the detriment of the common good. Just who holds the moral high ground in the copyright wars is philosophically debatable, although the current legal realities are clear. Consumers of intellectual property are too often regarded as simply commercial prospects rather than stakeholders in the intellectual property equation.

One issue that needs to be reformed somewhat radically is the length of copyright before a work enters the public domain. While it is a moot point in the context of most computer software, whose commercial value after even the original 14 years of copyright protection is usually about zilch, in other contexts the current 70 years after the original creator’s death is absurd, and I’m not sure how that applies in the case of record companies holding the copyright on songs. I would suggest that somewhere between 14 and 25 years, living or dead, would be more appropriate for works of durable value. Even pharmaceutical companies that spend millions of dollars developing prescription drugs don’t get anywhere near the exclusive rights protection that record companies to for works that they don’t even create themselves. It is, as I said, absurd.

In the software arena, there is the issue of “abandonware.” If a company is no longer interested in developing and supporting and selling a piece of software, say -- Apple’s System 6 and System 7 operating systems, I believe that they should be obliged to put it into the public domain after reasonable passage of time -- say four-five years at most. They could gain a bit of good will at negligible cost by doing this voluntarily.

However, if one wants to use a piece of current commercial software, it is only fair ball to pay the developer’s registration fee. I wouldn’t use Microsoft Word or Office even if they were freeware, but if you do, then don’t complain about Microsoft astronomical license fees. As cited above, there are plenty of alternatives to Microsoft software that sell for a lot less.

Incidentally, BSA members include Apple Computer, Adobe, Autodesk, Bentley Systems, Borland, CNC Software/Mastercam, Macromedia, Microsoft, Symantec and Unigraphics Solutions. You can find out more here:
http://www.bsa.org

Charles W. Moore

Cool Mac Gear