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Pirates of the New World

How about a new word for illegal software?

My son John is blessed with singular focus. Last summer it was all baseball all the time. This winter it’s all pirates all the time (except for an occasional break to play Santa). Every time Dad goes on the Web, John runs over and asks me to look up pirates for him. There are dozens of sites, each complete with its own rogues’ gallery. In the process, we have learned that these men and women my son idolizes–Blackbeard, Anne Bonny, and the like–were some of the most rotten scoundrels in history.

These days, pirates don’t steal ships or kill innocent people in cold blood. And they certainly don’t look any different from you or me. In fact, they are you and me. People are dubbed pirates simply for making software-registration mistakes or failing to save receipts for their software. Odds are each one of us has used pirated software at some time. As such, most of us are guilty of piracy, though few have ever been aware of it.

In our cover story this month on the Business Software Alliance (BSA), the term pirate is used too liberally for my taste. In one case mentioned in the story, the BSA and federal marshals raided a company because the BSA claims it had pirated software. The company president claims it had purchased the software but had not kept good records of its authenticity. He continues to run a reputable business long after paying a huge fine and being dubbed a pirate by a willing press.

Even if the company had some employees who used software licenses illegally, pirate is inappropriate. Why not be clear when referring to illegal software? Call it copyright infringement when it applies to illegally copied software. Call it counterfeiting when referring to re-engineering and otherwise faking software. Accuse them of breaking copyright, trademark, and patent laws. But don’t fill the description with inflammatory comparisons to 18th-century terrorists.

That was my overarching approach to editing the cover story. We tried to weed out biased language in order to be fair to both sides of this sensitive issue. Software companies have every right to defend their intellectual property (IP, not to be confused with Internet Protocol, the other IP). And companies and individuals deserve due process when accused of violating IP laws. More than anything, people who use software need to be made aware that certain workplace cultural attitudes must change. Without these attitude adjustments, the software IP checklist we provide with our cover story will never be completed, and those small businesses will be at risk of being dubbed pirates.

The attitudes I’m referring to are similar to those common on music sites like Napster, at least before the law caught up with them. In my generation, we taped music from albums. The tape players have been replaced by CD burners and the albums by CDs, but the practice of copying and mixing music we own for our friends is prevalent. If you polled audiophiles, asking whether they think this practice is wrong, a vast majority would answer no. The attitude extends to taping TV (or copying it to hard disk with TiVo), copying videos, and copying software.

What makes people leap from music to videos to software? The sense that if the law is consistent from one medium to the other, enforcement should be as well. I’ve never heard of prosecution in cases of taping music from albums. Blank tapes were sold by the millions in the ’70s and ’80s, but copying for personal use was not questioned. Same with videos. The familiar FBI warning did not deter many people from making personal copies. Commercial copying was another story. And the attitude about software is that as long as it’s for personal use, it should be OK.

But enforcement is not uniform from one type of IP to another. The BSA usually gives companies a chance to do an internal audit and eliminate illegal software in their midst without penalty. Microsoft, one of several companies that conduct their own business software investigations in addition to being involved with the BSA, also gives companies ample opportunity to get in line. But the line is drawn at a stricter place than in other media–no copying, personal or otherwise. And these rules are being coded into the software itself, as in the case of Windows XP.

It is interesting to note that the software industry’s IP attitudes are starting to spill over into other media. CDs are starting to come out with anticopying provisions. DVDs already have another type of this technology. Soon all media will be copy-proof, including books, and not just e-books–the paper on which books are printed on will foil photocopiers.

In my view, these trends lead away from constitutional fair-use provisions. Constitutional law scholars say the law allows for limited personal copying and for the republishing of up to two lines of text without permission (with proper attribution). In giving permission, the copyright holder could allow whatever she or he likes. Copying for the purpose of distributing works without permission has always been illegal. But enforcement of personal copying is a new practice since software companies started writing more and more restrictive licenses.

Congress has been clumsy in handling issues related to digital IP. The current law governing many of these matters–the Digital Millennium Copyright Act (DMCA)–represents Congress’s third attempt to clarify digital IP issues in the law. And it is fatally flawed. The DMCA effectively bans all independent research related to anticopying technologies. Anthony Felten, a leading scholar in the field, decided not to publish his research related to anticopying technologies out of fear of prosecution. The editor of 2600: The Hacker Quarterly was prosecuted for linking to such research. And a Russian scholar, Dmitry Sklyarov, was jailed for several months for publishing research related to anticopying technology. You would think the law would actually encourage such research in order to improve the underlying technology. But it does the opposite, and impinges on free speech as well.

Regardless of my views, the fact remains that the BSA enforces casual personal copying. Given that fact, attitudes about IP need to change when it comes to software. You need to tell your employees to set aside their personal attitudes and follow your rules. If you have one person at your place of business with the attitude that copying for personal use should be OK, you are at risk of severe penalties and being associated with violent criminals, i.e., pirates.

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