"Do you consider yourself a thief?" asks Low End Mac's Andrew W. Hill.

"Have you ever stolen something that you wanted so badly you just couldn't wait to afford it? Have you ever been so hungry that you had to steal a loaf of bread or helped yourself to an apple on a farmer's tree? How about needing a particular software program for school or work, but balking at the several hundred dollar price tag or upgrading your version of Mac OS without paying the fee Apple wants? Kept your shareware program longer than 30 days (or whatever) without paying?

"How about Napster? Ever felt that buying a CD was too expensive or took up too much of your time to go down to a retail outlet?

"Face it, most of you who are reading this are thieves."

Are we?

In a similar vein, MacVillage.net's Robert Accettura, reviewing the LimeWire Gnutella client software, notes that "what I really want to discuss in this article is ethics and legality, two things that are a joke on the Internet." He goes on to point out various illegalities associated with the use of Gnutella under U.S. copyright legislation.

"I would give this software a rating," he concludes, "but I will not rate any software designed with the sole intention of violating US Law."

Very public spirited of Mr. Accettura. However, he might be interested in the argument that current U.S. copyright legislation arguably contradicts the express intent of the U.S. Founders and writers of the Constitution. Read on.

A study on global software piracy released in June, 2000, by the Software Publishers Association (SPA) estimated that, of the 574 million new business software applications installed globally during 1997, 228 million applications -- or four in every ten -- were pirated. This represented an increase of two million more new applications being pirated than in 1996.

Revenue losses to the worldwide software industry due to piracy were estimated at $11.4 billion (US). The top ten countries with the highest dollar losses due to software piracy are (in ranking order) the United States, China, Japan, Korea, Germany, France, Brazil, Italy, Canada and the United Kingdom. Total losses for these countries are a claimed $7.8 billion, or 68% of worldwide losses.

I take these loss estimates with a large grain of salt, however, 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.

"This survey shocks the conscience, further illustrating that fighting piracy needs to be elevated to a higher priority," said Business Software Alliance (BSA) president and CEO Robert Holleyman in a press release. "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,"

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, 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.

Indeed, a study released last fall by the Canadian Alliance Against Software Theft (CAAST) found that more than half of the business software in use in Nova Scotia, where I live, is pirated, and I suspect that's a lowball figure too. The piracy rate for Canada as a whole is calculated to be 41 per cent, and for North America as a whole 28 percent, indicating that piracy is much less prevalent in the U.S. (about 27%).

The piracy rates in Canadian provinces are in descending order of magnitude: Prince Edward Island (55.8%), Saskatchewan (54.5%), Nova Scotia (50.9%), Newfoundland (50.1%), British Columbia (44.8%), Northwest Territory (44.4%), Yukon Territory (42.5%), New Brunswick (42.1%), Quebec (41.8%), Alberta (38.6%), Ontario (38.3%) and Manitoba (37.8%).

It perhaps tells us something that in general provinces with the less robust economies and lower per capita incomes tend to be the biggest piracy havens. Maybe that's why affluent America is less piracy oriented than Canada where the zloty -- er -- Canadian dollar is worth a measly US62¢ or so in real world terms (the official exchange rate is hovering around $.65, but you don't get that rate when you buy greenbacks at the bank).

More depressing news for the BSA, the SPA, and CAAST is found in a survey by Canada's Decima Research that indicated 43% of Canadians condone software theft (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.

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 piracy rate. Why?

I don't agree that software or music piracy is directly analogous to stealing tangible property, and I would suggest that it is an entirely new category that has yet to be adequately defined in terms of social ethics.

This category really emerged with the development of reel to reel and cassette tapes, and photocopies in the '50s, '60s, and '70's,. Prior to that, widespread unauthorized copying of copyrighted materials was essentially impractical at the consumer level, but once technology made it possible, vast numbers of people began to do it, including, for instance, teachers and professors who photocopied material out of text and resource books to hand out to classes, and clergymen who copied sheet music and material for use in Sunday schools, as well as kids making mix tapes of favorite cuts from vinyl albums.

Sorry, but in a philosophical sense, 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.

MacCreator's Eolake Stobblehouse, himself a copyrighted content creator, had this to say about some comments I made a while back about software piracy:

"I agree with you about the small percentage of pirated software that would have been sales. It continues to amaze me that most people still fail to see that the fact that software, etc., is not *physical* is an essential difference. It does not mean, of course, that it does not represent real work and that this should be rewarded, but it does mean that nothing physical is missing when it is 'stolen.'"

I'm not saying here that there should be no legal protection of intellectual property, but making the scolding, and I believe unfounded, accusation that downloading and MP3s from Gnutella or Napster is *exactly the same* as ripping off a CD from a record store is not helpful. The fact that literally hundreds of millions of people, most of whom would never entertain the idea of shoplifting a CD, have sanguinely downloaded multi-gigabytes of pirated music from Web file sharing services should tell us something more than that people are rationalizing larceny.

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).

For a good, contrarian analysis of the historical development of intellectual property and copyright legislation, check out Del Miller's excellent essay on the topic. Del notes:

"We should remember, however, that the laws that give this quaint practice legitimacy are merely the arbitrary constructions of society rather than a God given mandate from heaven. Until western culture invented the concept that music could be owned such a thought was ludicrous, a bizarre corruption of nature's way. Along the way we chose to make music into property, but this was not a singular decision, debated and decided upon by people of judicious nature, rather the notion grew piecemeal from the arcane history of print copyright laws which themselves arose from the random workings of human endeavor. Our world could have easily evolved with music as a freely given, freely taken work of nature, as free from the rules of commerce as is our very breath.

"'Theft' of intellectual property is viewed as larceny of the highest order and the penalties are so severe as to condemn the offender to financial death. However, such views only reflect our present day sensibilities, skewed by the adversarialism that we accept as normal commerce and by the complicated laws that govern it. But is this right? Can we judge the correctness of these laws without understanding their original purpose and the torturous path by which we've come?"

Del argues that to a considerable degree, present day copyright legislation has turned the intent of the writers of the US Constitution on its head.

"It is important to note that the very clear purpose of the framers was to promote knowledge and art -- not to guarantee monopolies by it's creators. The use of the word "limited" speaks forcefully on this point. This clause is the constitutional foundation for the first Copyright Act, which granted the holder of a copyright the exclusive right to print, publish, and sell a copyrighted work for fourteen years with a second fourteen-year term possible. There were no rights given to the copyright holder regarding the public performance of the work nor could the holder control adaptations or derivative works."

Del has a lot more good stuff to say on this issue. I encourage you to read his article. I think that his point about copyright laws existing within a supposedly democratic legal and social structure is especially salient. The only reason why copyright legislation exists at all is theoretically as a reflection of democratic will, and it is obviously not an overwhelming consensus in the current context.

These laws (EG: 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.

Marc Zeedar, a producer of copyrighted software and prose, commented in his "Less Tangible" column on MacOpinion this week:

"Okay, I've had it. These and other issues, such as the ridiculous case of the FBI arresting visiting Russian scientist Dmitry Sklyarov for breaking the Digital Millenium Copyright Act (DMCA), which absurdly bans any attempt to circumvent a company's copy protection scheme, have pushed me over the edge. I am sick and tired of this chipping away at our First Amendment rights.

"The truth about copyright is that it was never to be an absolute. Copyright essentially gives a monopoly of a particular creation to the author, but only for a limited time and for limited purpose.

"The real purpose of copyright is to encourage innovation. Since we live in a capitalistic society, the reward for creating something others want (whether it's a novel or a song), is money. By giving authors temporary control over their inventions, they can profit while others are legally forbidden to take advantage of the author's work. But after a while (long after the author's death), the author's creation becomes part of society....

"What is happening now, with laws like the DMCA, is a closure of libraries, a gagging of free speech. It's happening subtly, at a gradual speed that means it won't be clearly evident to most of society until it is too late. And it's happening with the good-hearted message of attempting to protect the poor author....

"Remember, copyright is not a right -- it's a privilege. Copyright is society granting an individual a limited monopoly for the purpose of encouraging that creative individual to be creative. It is not a medium for a company to enforce extreme security restrictions on the public."

An anonymous commentator published this week on Low End Mac argued that:

"With intellectual property, we've separated the concepts of loss from harm. It's not exactly biblical anymore. You can still have your original, and I can have a copy....

"We are working our brains around the concept of intellectual property. Culturally, it's a relatively new thing. And most of the world isn't on the same page as North America and Europe yet. They may never be.

"If you write a song, and I walk down the street whistling it, that's okay. If I rent a hall, charge admission, and whistle the same song, I owe you royalties.

"The act is exactly the same in both cases. Only the surroundings and situation change. I'm still just whistling Dixie."

Well, I would have to observe that there is a difference in the sense that in the case of renting a hall and charging admission, one is making a buck off said intellectual property, and in that case my evaluation would be that the property owner is entitled to a royalty on any profits. However, the copyright fanatics have not furthered the cause of good will towards them by sniffily insisting that "any" replay of copyrighted music must (at least theoretically -- it's difficult to enforce) be accompanied by royalty payments, even if it's for a charity fundraiser or a community drop-in center holding a teen dance where the admission barely covers expenses. That's the sort of attitude that makes consumers bloody-minded about downloading pirated music.

Which of course is, in the context of this discussion being used for private listening -- not commercial exploitation, in which case the moral waters become more muddied.

On on the software end, we've recently witnessed Microsoft's shoddy treatment of PCs For Kids, a Geelong, Australia-based organization which distributes free PCs to poor children. Microsoft has alleged that old PCs, distributed with the MS-DOS, Windows 3.1 and Windows 95 systems by PCs For Kids, are in violation of its licensing agreements even though M$ neither distributes nor supports any of these operating systems any longer.

In a 'goodwill' gesture, Microsoft offered PCs For Kids 150 Windows 95 packs, together with 10 refurbished PCs. PCs For Kids had requested 2,300 licenses for the obsolete systems. and given Microfsoft's intransigence and dog-in-the-manger attitude, the charity may be forced to shut down.

You can read more about it here:
http://www.insanely-great.com/news/01/957.html

Now I don't doubt that both Microsoft and the music copyright cartels are perfectly within their legal rights in the instances I have just cited, but -- 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.

The anonymous Low End Mac commentator notes that:

"If the concept of a Public Library were arise today, it would never fly. It would die the death of a million lawyers.

"'The government is going to buy books, CDs, records, and other intellectual property and share it freely with its citizen's because the cost of reproducing media is so expensive.'

"Wow, what a crazy idea; it would never happen."

He also cites a conversation, in which he personally acted as a sort of translator, between a group of 14 year old students and a Rabbi who was visiting their school, about the *need* for multi-gigabyte hard drives.

The students argued that since what they were sharing was copied music files, no one actually lost anything.

"The Rabbi attempted to tell them that theft was theft -- they were stealing from the individuals and families who originally authored the work.

"The interesting thing is that he wasn't exactly sure of himself."

As I said above, I don't believe the ethics of intellectual property in the digital age have been adequately worked yet out by a long shot, and I emphatically do not believe that draconian, heavy-handed impositions like the Digital Millennium Copyright Act are morally defensible (although they of course carry the provisional force of law). Unjust laws can be overturned through the political process. The task is come up with something fair and equitable to all stakeholders, which includes consumers, to replace them with.

Charles W. Moore

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