An Evaluation of the Merits of Noncommercial Software Piracy

Matthew Russell, Lebanon Valley College

06 February 2001

In the last forty years computers have touched almost every aspect of our lives. From the automobiles we drive to the ovens with which we cook, few things we own or use have no relation to computers. Computers have also redefined the way society thinks about issues, and intellectual property is an excellent example of this. Intellectual property is defined by the Universal Declaration of Human Rights, Article 27, as, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. Traditionally these rights dealt with scientific discoveries, literature, art, and music. These rights have been protected by the copyright, and the copyright is the unbreakable wall that keeps intellectual property safe from looters. Computer software, however, does not seem to fit into this. Noncommercial software theft or piracy, while currently illegal because it violates the copyright laws, is justified ethically, economically, and socially, and should therefore be allowed. Piracy is good!

  1. Under current U.S. law a person can own four aspects of a computer program, and they are:
  2. The ‘source code’ which is written by the programmer(s) in a high-level computer language like Pascal or C++.
  3. The ‘object code’, which is a machine-language translation of the source code.
  4. The ‘algorithm’, which is the sequence of machine commands that the source code and object code represent.
  5. The ‘look and feel’ of a program, which is the way the program appears on the screen and interfaces with users. (Bynum)

These four aspects are protected under the copyright. Copyright, in this country at least, has its origins with the Founding Fathers and was included in the Constitution, Article I, Section 8.

The supporters of copyright and private property often quote John Locke,

he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property?For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others. (Weckert)

What Locke said was that, as long there is enough left for others, a man may take what goods he desires. There are obvious limitations to this idea. As Weckert points out, if a man were to empty a beverage, mixing it into the ocean, he does not own the ocean. Simply putting labor into something does not make it ones property for to do so would not leave anything left for others (58). Locke’s comments, which are the foundation of the argument against software piracy, will soon be shown to be critical support for software piracy.

The United States Supreme Court has heavily defended intellectual property and copyright. In both Sega vs. Accolade and Galoob vs. Nintendo the Court upheld the four components of software ownership aforementioned and ruled against piracy (Samuelson). However, the landmark court case of Sony Betamax (1984) overthrew the presumption about the supremacy of the copyright. In this case, Sony was pitted against the Hollywood heavyweights Universal Studios and Walt Disney Productions for attempting to sell the first VCR

in the United States. According to Samuelson, “The principal charge against Sony was that of contributory copyright infringement, for it was providing the instrumentality by which customers were able?to infringe copyrights and Sony knew they’d do so”. The results of this pivotal case have been far reaching, for the Court allowed the Betamax machines to be sold. The reasoning was simple: 1.) Noncommercial copying is just, and, 2.) By allowing its copyrighted works to be shown on TV, the studios knew that viewers with the Betamax could get it for free. The net result was, as Samuelson says, “The 1984 U.S. Supreme Court ruling in the Sony Betamax case has indicated that private noncommercial copying should be presumed to be fair and noninfringing.”

It is obvious that noncommercial software piracy passes the Supreme Court’s legality test since it ruled in favor of Sony’s Betamax. But does it pass Locke’s test? The answer to this, simply put, is yes, and for a very unique reason. Unlike traditional ‘theft’, such as stealing a car, a book, or a physical object, the theft of electronic data does leave “enough, and as good left in common for others.” The ‘theft’ leaves the identical item behind, as if no theft occurred at all. Suppose there is someone who would never or could never purchase a piece of software, does their pirating it harm the creator(s) as Locke and the Founding Fathers feared? “If everyone who would never have bought the software copied it, the owner is still not harmed-still no sales are lost. So no case can be made here that the copying is wrong on the grounds that it causes harm” (Weckert). Locke and the Founding Fathers may say this is wrong because it is still ‘theft,’ but Weckert has an interesting take on it. “It amounts to saying that even though using my work without my payment is not doing me any harm at all and is probably doing you some good, I do not want you to do so ‘because it is mine.’ We would probably want to scold a child for behaving like this!” It is evident that, since “enough, and as good left in common for others” is left behind, the ‘theft’ is not illegal in the noncommercial sense.

I would like to take a step back and give an example of where the copyright has been counterproductive. I am sure you all remember Y2K. The Y2K bug was a glitch in software around the world that exposed the problems of the copyright law. Computer programmers in the 1970s and 1980s decided to make programs smaller by reducing the number of digits in the year to two. This created a problem because when the year 2000 rolled around all computers would think the year was 1900. The problem was conceptually easy to fix since the only action that needed to be taken was modification of the software’s source code. Unfortunately, the buggy software was legally protected from tampering by anyone but the author or corporation that published the software. Since most of the authors and corporations that put out the defective programs were bankrupt, retired, or dead, no one could legally correct the bugs in Y2K software without paying a huge royalty fee to the programmer(s). In addition the people best able to fix the problems (hackers) were also those with the least money to pay the royalties, so few fixes presented themselves to the general public. Y2K could have been fixed years before the year 2000 ever rolled around had it been legal to violate the copyright laws to fix the problems. As fate would have it, most systems were not fixed until the dawn of the new millennium, putting lives and nations at risk.

Here is a more everyday problem. Samuelson remarks that, “To be a ‘software pirate’ within the felony provisions of U.S. law, one needn’t be in the business of making illicit copies of programs” (20). An example of this is a person who purchases a copy of a program from a software company. The person would like to use the program at home while at home and at work while at work, which is legal under copyright law. In order to do this legally, however, the person must do an incredibly asinine routine every day:

It makes no sense to load the software onto one’s office computer in the morning, erase it before going home that night in order to take a copy of Russell 5 it home so that it can be loaded onto the home computer that evening, and deleted from the home computer the next morning so it can be taken back to the office computer. (Samuelson 23)

This sort of action is required by shrink-wrap agreements that come with software, even though these agreements are not available to read until after the product has been purchased (Samuelson 23). De George notes that, “This is typical of warranties on software, which usually state they are at most limited to replacement or refund under certain conditions. Nor do many even claim that they are liable for such replacement even if the product does not perform for some specific purpose {Y2K}” (51). De George also notices that the companies who put out defective products have little pressure, socially or legally, to cease such practices. The consumers are left defenseless on an issue about which they are logically and ethically correct (52). Few if any commercial services would treat customers so shabbily, yet software manufacturers not only have but also continue to do so.

The final legal concern that is distinctive to software is the uniqueness of software copyright law. If I were to purchase a book at a bookstore I would be able to do anything with that book that I liked (short of copying it for resale, a topic which this paper does not address). I could save it, read it, reread it to a group of people, sell it, give it away, and even rent it. This example works with almost anything, videos, CDs, automobiles, pies. Everything, that is, but software. I cannot resell my software, give it away, let others have it, use it, rent it, or borrow it. This is intuitively contrary to most people and is a primary reason for the proliferation of the ‘unknowing’ noncommercial software pirate. Most people do not see the distinction between lending out a book or lending out a piece of software, and public ignorance is a primary reason that software piracy continues en masse.

Russell 6

The critics of software piracy rest a good portion of their objection on the theory that without capital to reward innovation no innovation will occur. This problem is posed in a variety of ways, “If copying were freely allowed, there would be no money to be made, and profits must be available or nobody will make the effort to develop their ideas” (Weckert 61). Even Bill Gates once said “Most of you steal your software?one thing you do is prevent good software from being written. Who can afford to do professional work for nothing” (McHugh 98).

To answer Mr. Gate’s charge there have been several applications developed by programmers working for free. The ramifications of these programs, freely made and freely distributed, have been nothing less than unparalleled. While Microsoft may rule the PC world by day, the free source community (known as the Open-Source Software (OSS) movement, Free Software Movement, and Open Source Project) rules the world every day of the year.

The two most prolific free applications in use are BIND and Sendmail. BIND is what lets you type in instead of the actual number for Microsoft’s website (555.55.555.55). Sendmail, along the same lines, lets people enter email addresses like instead of typing in the numbers for that person’s account. This program also makes sure over 80% of the email on the internet gets to its destination (McHugh 99). Without these two freely maintained and freely obtainable programs the internet would literally grind to a halt.

The classic examples aside, the two most promising new technologies of the 21st century are both OSS offspring, lovingly named Apache and Linux. Apache is the software that runs the majority of the sites on the internet, and it is freely available for the entire world to download. Linux, the revolutionary new operating system that is poised to take over the worlds PC’s (and currently runs on 10 million computers including the US Postal Service and the Los Alamos National Laboratory), is also a freeware project (Mann2 38), (Alper 1977). Apache was recently featured in Forbes because of a deal with the $100 billion company IBM. IBM crawled on its knees to the programmers in an attempt to be able to utilize Apache in IBM’s new web-server software. The programmers smiled and told IBM they could use it, for free, if they kept their source code open. According to McHugh IBM did a double take, finding it hard to believe that a program worth over a billion dollars was being given to them for free (95). In the face of such an incredible deal IBM happily agreed and Apache became the cornerstone of the companies internet software. When the founder of the PC industry and most powerful computer company in the world (IBM) teamed up with a group of revolutionary hackers, the legitimacy of the OSS movement was made internationally known.

Why would Apache willingly give away a billion dollar piece of software for free when it could turn a profit of a billion dollars?!? The answer to this question is found in the roots of the OSS movement. Personal computer programming began, for all intents and purposes, at MIT in the 1970s. At that time there were few programmers and even fewer programs. The atmosphere in the MIT computer lab was free and open, with students readily sharing their programs and source codes with each other. This open and free atmosphere is where computer software was born, and as far as OSS programmers are concerned, where it should remain. It was not until the early 1980s that companies like Symbolics and Xerox entered the MIT lab and paid students to leave. In doing so Symbolics copyrighted the students programs and forbade the other students to use the source code. “They {the MIT students} stopped turning out freeware and produced instead trade secrets, hoarded and hidden” (McHugh 98). As time went on almost every program in the lab was copyrighted and its use was illegal, something that would have seemed absurd prior to Symbolics’s arrival. Most programmers sold out and entered the corporate programming world, but the few who did not started the OSS movement to keep software free (McHugh 98, Mann2 38-39).

Linux is the flagship of the free source code movement that has been in the works since 1984 (Mann2 38). The movement’s goal is to keep the source code, the meat of the program, free for all to see and modify. This process, in theory, encourages others to fix problems and improve the software. The theory was vindicated in 1999 when GNOME, the interface for Linux, was released to the world. Linux is arguably the most successful free piece of computer software ever written. The operating system is faster than all its commercial counterparts, is more stable, is updated daily, and is capable of running smoothly on incredibly outdated machines. As mentioned earlier, Los Alamos National Laboratories runs Linux on a supercomputer they built. The incredible thing about that supercomputer is that it was constructed out of 140 standard desktop PCs (Alper 1976).

The Linux project rests on CopyLeft, the license agreement to which all Linux programmers agree (Alper 1977). This agreement says that anyone can have and modify the Linux software in any way, but any improvements made must be posted for all to see on the internet. Through this revolutionary agreement any software problem is usually fixed within a day, compared to months it takes companies like Microsoft to respond. “Hundreds of programmers?worked on Linux, adding utilities, fixing bugs, writing manuals, adding capabilities and porting it to different computer systems. New versions poured out at an astonishing rate-sometimes more than one a week. Each would be downloaded and worked on by people around the globe” (Mann240). By keeping the source code open, “Essentially you harness the power of millions of users to find problems, whether they be bugs or just deficiencies, and thousands of programmers to fix them quickly. The end result?is that you get software that’s smaller, less buggy, and more stable” (Alper 1977). What is more impressive is what was written in a confidential Microsoft internal memo in which “Microsoft product manager Vinod Valloppilli wrote, ‘The ability of the OSS process to collect and harness the collective IQ of thousands of individuals across the internet is simply amazing’” (Alper 1977).

It is clear that there are incentives other than capital that can cause creation. In the case of Linux, Apache, and the OSS, that incentive is respect. The hacker that makes a serious tweak on Linux or Apache is regarded as a god in the computer community. While the person gets no monetary reward the respect of his peers around the world is much more valuable. “The excitement of advancing the technology is what drives hackers” (McHugh 99), according to Linus Torvalds, the father of Linux.

The obvious question is what happens to the software companies if they cannot charge customers for the software? An excellent example is a company known as Red Hat, a company that sells Linux to users via CD. While Red Hat does post the entire operating system on their web site free to download, for those who would rather have a trimmed down and ‘hard copy’ of the software the CD is a nice option. In addition, the company provides perks to customers such as tech support and a streamlined interface. Many novice users would rather have someone hold their hand than attack Linux blindly, so companies like Red Hat do extremely well. “Although Red Hat is very much a for-profit company, it keeps the faith by making the Linux source code-and any source code its programmers add-available with the software” (McHugh 99). It is therefore possible to keep the software free and turn a profit, and Red Hat is the model company that the OSS would like to see proliferate.

While the economic and political components of software piracy have been evaluated, they may not even be relevant. “Because copying software is so easy, it will, in the final analysis, always be primarily a matter of social attitudes and of individual consciences. In this respect, it probably won’t matter what new laws are passed” (Forester 9). Lombardi offers a unique perspective when he says, “It’s worrisome to think that a lot of people just feel O.K. to take whatever they want without regard for the producer, owner or person who worked to put it together, as long as no one catches them” (21). To counter this point, Bickel says:

The law, however, never prevented anyone from merely slowing for a stop sign when driving at 2 A.M. on an empty road. Unless people feel that an activity is unethical, most will have little compunction about performing that activity. When doing so also is convenient, involves almost no chance of being caught and prosecuted, and carries a negligible penalty, mass illegal activity is almost inevitable. Thus, the task at hand becomes how to convince someone that it is wrong to copy a $300 program that he or she can’t afford and wouldn’t buy, when he or she is not taking anything tangible from anyone else. (273)

The problem as both of these men see it is that it is inherently wrong to pirate software. Lombardi’s point can be refuted by mention of Locke’s test, as can Bickel’s. How is the programmer harmed if no business is lost, and is it wrong to do so if no harm is done to anyone? Both of these questions have been answered already, and in light of this, it appears that both these men are incorrect in their fears about noncommercial software piracy.

The software corporations are naturally raising hell over this issue, as their financial choke collar disintegrates if software is made free. Lombardi said, “When I sold my software years ago, I was warned to take the money and run, because there would not be much in residuals since ‘pirating’ in the schools would leave little market for the packaged product” (21). While this is a legitimate fear it is, at least at Lebanon Valley College in the year 2001, misplaced. The vast majority of the students at this particular college know next to nothing about computers. While many can use Windows, type a document, and surf the web, most are oblivious to the vast wealth of pirated programs available to them. Because of this I would conservatively estimate that less than 5% of the students actually use pirated software on this campus, making Lombardi’s fears deeply exaggerated.

To write this analysis from all perspectives I decided to interview some hackers and software pirates to get their opinions. Their identities will be withheld and no direct quotes will be used (for reasons that hackers will understand), but the general gist of their comments will be given. While I myself cannot confirm or deny my involvement with these people, I can say that their comments are typical of most people I may (or may not) have encountered over the years. A software pirate today is classified into two categories, those who actually hack the software and those who release it outside the group. The first group tends to be a very closed, elite group of hackers operating all over the world. Their motivation, and their motto, is ‘keep it phree {free}!’ This statement summarizes everything the OSS movement, free source movement, Linux, and this paper support, the freedom of software for noncommercial use. The second group tends to be kids under the age of 21 that are the offspring of the OSS movement. These children band together to form ‘groups’ online and work together to provide the world with easily accessible software. Most of these children are separated by continents, speak no common language, and have few cultural values in common. The only thing they share is the motto, and they work regardless of race, religion, and sex to achieve their goal. Sound utopian? It is, it exists, and it does work.

The people the pirates target for their software are elite computer users. The target individual knows enough about computers to reverse engineer just about any program to which they are exposed and never needs to rely on help files or tech support. The dedication and knowledge of the target population ensures that they are not likely to turn the pirates in to the federal government for prosecution, while at the same time ensuring that the software is retained in a rather small and diverse community. These software pirates, like the hackers of Linux, work solely for respect. The people they cater too are typically ‘retired’ software pirates and hackers themselves, so in a utopian way the hackers care for each other. The pirates I have talked to see themselves as the future. Their aim is not to destroy society, capitalism, or even corporations (with the exception of Microsoft, which every good pirate cannot stand), but to provide each other with the tools to use computers as they were meant to be used.

As evident in the ethical, economic, and social arguments, noncommercial software pirating is not a bad thing. Capital is not necessary for advancement as so many proponents of software piracy state. “Artists, academics, and scientists frequently create without such reward. Perhaps acknowledgement is enough. Or perhaps creation is its own reward” (Weckert 62). Whichever the case, great triumphs like Apache and Linux do come without any capital. The current idiocy of intellectual property laws, as evident in the Y2K and shrink-wrap license examples, is also a reason to allow noncommercial software piracy. “In short, the law on intellectual property as it applies to computer software is in a mess” (Forester 7). “There’s a Gandhi quote Linux hackers love: ‘First they ignore you. Then they laugh at you. Then they fight you. Then you win’”(Mann2 42). As Mann goes on to say, “Microsoft kills its rivals by starving them of revenue?but they can’t kill us that way, because we don’t have any revenue?we’ll keep coming at them” (42).

Copyright lasts for the life of the author plus fifty years, or seventy-five years for a corporate author. Most programs of any popularity are obsolete within three to five years, and are replaced by later versions. Yet one cannot legally give even one’s obsolete versions of a program to a friend to use. It is not surprising that the rules are often breached, especially since they cannot be policed. (De George 54)

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