COMMUNICATIONS OF THE ACM December 2000/Vol. 43, No. 12 11
In “Global Software Piracy: You Can’t Get Blood Out of a Turnip,” (Sept. 2000, p. 82) Gopal and Sanders seem to state the obvious, albeit backed up with impressive facts and figures. To anyone living in countries where the income is significantly below that of the U.S., there can be no doubt that the high price of software, often at or even above normal U.S. rates, is a prime factor in piracy.
The authors, however, neglect to mention a few other very important factors. First, and per-haps foremost, is the view that most software companies are already making sufficient—even excessive—profits, hence pirating software is not viewed as particu-larly immoral. Second, the fact that most of these companies are U.S.-based, means that, in pirat-ing software, people may believe they are somehow striking a blow against ever-encroaching U.S. eco-nomic and cultural imperialism or, at the very least, “stealing” from the rich. It is only fair to point out, too, that labeling certain
countries as needing only “one legitimate copy” is terribly wrong. In most of the countries singled out, it is a gross exaggeration; no legitimate copies are needed what-soever.
The parallel with other tries, in particular the music indus-try, is revealing. The Napster phenomena illustrates that price is not necessarily the major factor governing piracy. In downloading MP3 files over the Internet, mil-lions of normally law-abiding U.S. citizens—most with the means to purchase the items legally —are openly and knowingly infringing copyright. Yet they do not imagine themselves doing anything particu-larly immoral. They rationalize their acts by pointing to the exces-sive profits of the record compa-nies, and believe themselves striking a blow against the march of big business. Once a recording is spirited out of a recording stu-dio, it can be very difficult to sell many legitimate copies of the record.
The Internet could mean that the replication and distribution of
intellectual material will no longer be a lucrative source of income. This not only threatens all those employed in such industries, but in turn means that even the authors of such works must find alternative ways to support their endeavors. Ultimately, artists of all sorts will be forced to earn a living either by performance fees or by advertising. Alternatively, they may survive on donations or find other employment to support their cre-ative endeavors. If society values its culture—books, music, software, and films—it must find ways to encourage and support those who produce it. Legislation and educa-tion must be geared to the fact that piracy is not solely a matter of economics anymore. It is funda-mentally a moral issue.
David Davenport Ankara, Turkey
Gopal and Sanders make made an interesting economic argument. I wish to comment on several ideas from their last paragraph. They state, “…soft-ware piracy … is wrong from
Software Piracy Is Not Just
Economics Anymore
PAUL
12 December 2000/Vol. 43, No. 12 COMMUNICATIONS OF THE ACM
both a legal and moral stand-point.” Software piracy is wrong because we, in the U.S., have created a social contract, stating, in effect, that “If you create intellectual property that will ultimately enter the public domain and, thus, add to our society’s store of knowledge, we will give you an artificial and temporary monopoly over that property.” If we hadn’t entered such a contract in the first place, we would be under no moral obligation to pay licensing fees.
There are several problems with this social contract (embodied in our copyright laws), particularly as it applies to software. The first is that we have made the copyright terms so long that, by the time software enters the public domain, it is useless, except, perhaps to his-torians of technology. Thus, we, the public, get nothing of value from the deal. A second problem is that we are losing the ability to keep up our side of the deal (for example, preventing copying, as technology makes it easier and easier). Only significant govern-ment effort can limit copying. Global copyright enforcement is an expensive proposition, and the expense is not justified by the neg-ligible return to society of an antique binary entering the public domain.
Here’s my suggestion: Limit software copyright terms to 10 years; if you haven’t updated your program in 10 years, you don’t deserve any protection. Second, require submission of source code at the beginning of the copyright term, and let the copyright office release the source at copyright expiration.
Gopal and Sanders also state that “consumers … also realize the very positive benefits derived from
having supported software.” Could it be that software publish-ers ought to be selling support in the underdeveloped world rather than trying to force users to pay for something that costs near-zero to duplicate?
Michael P. Conlon Slippery Rock, PA
Gopal and Sanders propose as one cure differential pricing in different markets on the assump-tion that something is better than nothing, where nothing is a highly likely outcome. Software (and hardware) vendors already engage to some degree in differ-ential pricing (for example, acad-emic/educational pricing as compared to other pricing schemes in the marketplace). Though I am not an economist, I wonder whether some price could compete across all markets to permit software vendors’ returns equivalent to what they now receive. Or is the price now demanded and received in some markets high enough to offset and therefore make tolerable pirated software in other mar-kets? To put it another way, are markets in some sectors so small that piracy is less costly to ven-dors than finding some equilib-rium price. Economists weigh in please.
Wallace Koehler Norman, OK
Need Stronger Argument for Access Control
“technological Access Control Interferes with Nonin-fringing Scholarship” (Sept. 2000, p. 21) seems to me unwor-thy of a “Viewpoint” column.
Authors Appel and Felton say that technological protection “will hinder legitimate noninfringing
uses vital to scholarship and sci-ence.” They state as fact things that might happen but do not show that any of them have hap-pened to any significant extent. They go on to make the unproven assertion that the supposed prob-lems will hinder work “vital to scholarship” (their phrase). This may or may not be the case, but a Communications “Viewpoint” on such a tender topic should be required to make a good argument that the alleged damage is in fact occurring or very likely to occur. The authors apparently believe that saying so makes it so.
The authors ignore the avail-ability of information from other sources—possibly less convenient ones but sufficient enough to accomplish the work allegedly hindered. Nor do they argue that, in an area in which conflict-ing interests must be balanced, the DMCA anticircumvention clause upsets the balance.
Finally, by implication and tone, they take for granted that the scholars in question have a right to the work. There is an undecided debate as to whether fair use is an affirmative right or merely a defense in an infringe-ment action. (An eminent intellectual property attorney taught the authors of the recent NRC book, The Digital Dilemma: Intellectual Property in the Information Age, that it was a lawyer’s trick to act as if the answer to an undecided legal question was in fact the answer favorable to the advo-cate’s case. Arguably, Appel and Fel-ton have tried this trick; if so, it needs exposing for what it is.)
The underlying principles were addressed eloquently in the Capen-tier Lectures at Columbia Univer-sity, summed up as follows: “Now it is no wonder that teachers and others who would be deprived by the new detailed code of some
existing benefit are making a loud moan; at the same time publishers claim to see their own eventual extinction in . . . the use of devices which can make one tangible copy serve in place of many” (Kaplan, B. An Unhurried View of Copyright, Columbia University Press, 1966).
In this criticism, I eschew stat-ing any position on the anticir-cumvention legislation; a carefully considered view can be read in the consensus argued in The Digital Dilemma.
My objection to Appel’s and Fel-ton’s “Viewpoint” is that it is too shallow to be helpful in the debate.
Henry Gladney Saratoga, CA The Authors Respond
Gladney takes us to task for writing about possible future harms on the grounds they are not happening yet. We chose to write about future harms pre-cisely because, having not hap-pened yet, they can still be prevented.
Second, one point of our essay is that the DMCA closes informa-tion routes that would have been open under traditional copyright law. We are not arguing that schol-ars need new rights under the law; we are merely pointing out the DMCA took away some of their existing rights.
Third, Gladney accuses us of “taking for granted” that the DMCA recognizes the value of scholarly fair use. In fact, the DMCA explicitly states the rule-making process should consider “the impact that the prohibition on the circumvention of techno-logical measures applied to copy-righted works has on criticism, comment, news reporting, teach-ing, scholarship, or research.”
Finally, although we find The
Digital Dilemma a useful book, we think its authors would agree it was not meant to be the last word on copyrights in the digital age. We endorse its recommenda-tion that stakeholders “begin a discussion” of these difficult issues and its conclusion that “fair use … should continue to play a role in the digital environment.”
Most Enlightening Ever
Phil Armour’s column, “The Case for a New Business Model,” (“The Business of Software,” Aug. 2000, p. 19) is outstanding. As a reader of Communications since 1966, I would count this among the most enlightening and impor-tant half-dozen or so articles I have ever read in the magazine. His deep insight into the nature of software will benefit our profession for years to come (but not con-cretely, of course, until practition-ers start to act on what he has identified). I look forward to Armour’s future contributions.
Mark Wallace Los Angeles, CA
What a great column by Armour. Truly groundbreaking; it will rank beside Vannevar Bush’s “As We May Think” in changing the world. (I hope it doesn’t take as long to see its fruition.) I’m glad that Armour’s ideas are reaching a wide and (I hope) influential audience.
Fred Ballard Highland Park, IL
I greatly enjoyed “The Case for a New Business Model.” I think Armour has quite a bit to say about how we should approach software development. Whether anyone will listen is, of course, problematic.
In any event, the column
makes the point that software is not a product, a point Eric Ray-mond also makes in The Magic Cauldron (though for different reasons). As I don’t see any cross-references in the two essays, I thought I should point out the overlap.
Rich Morin Pacifica, CA
I agree completely with Armour’s point about failure being as valuable as success. I’ve been working with a new intern who just graduated from high school. He’s smart and self-moti-vated. He had been hitting a brick wall with a problem in a program he was working on. After a few weeks of repeatedly trying to solve the problem the way he thought it would be solved, he finally got a suggestion (via a Web discussion group) to try a different approach. When he tried it and found it worked, he apologized for taking so long to solve what was ulti-mately an easy solution. My response was that it was probably the best experience he could have had during his internship. The solution ultimately required a sim-ple shift of perspective—stepping back from the problem and approaching it fresh.
At the end of our discussion I asked him if he would ever attack a problem in the same, brute force, single-focus way. His answer: “No way!” My response was to tell him he had just learned a valuable les-son that will stick with him for the remainder of his software develop-ment career.
Steve Green Minneapolis, MN
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