SOFTWARE PIRACY: AN ALTERNATIVE VIEW Jim Thomas and Gordon Meyer (5 March, 1990) Jim Thoma

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SOFTWARE PIRACY: AN ALTERNATIVE VIEW Jim Thomas and Gordon Meyer (5 March, 1990) ------------------------------------------------------------------- Jim Thomas is an associate professor in Sociology. Gordon Meyer received his M.A. in Sociology in 1989. They are currently researching the computer underground from which the data for this note are drawn. ------------------------------------------------------------------- The university policy against computer software piracy has been widely publicized, including in a recent issue of Computing News (December, 1989). There is no question that the university must protect itself against actions of the NIU community for which it could be held legally accountable. However, based on our current research of the "computer underground" and the active- ities of "phreaks, hackers, and pirates," we find no evidence to support the many value judgments offered in the rationale circu- lated by the university. These normative judgments contribute to law enforcement tendencies to expand the definitions of illegali- ty and, as one recent government publication has done, to place piracy in the same category of crimes as "computer theft" and "theft of trade secrets." Our intent here is neither to justify software piracy nor to challenge University policy. However, be- cause the area of copyright and "computer abuse" law is so new, and because these laws tend to rely in media and other depictions of "computer underground" activeity as criminally sanctionable, we challenge conceptions of underground activeity that seem unsub- stantiated by evidence. The university's normative justification of the University policy can be summarized in three broad principles: 1. Software piracy shows disrespect for the intellectual work and property of others and subverts the mission of higher education. 2. Software piracy deprives authors of a "fair return" for their work. 3. Software piracy is unethical. These assertions help justify criminalization and corresponding sanctions. However, The data from our research do not support these judgments for several reasons. First, software pirates make a clear distinction between "pirates," persons who collect and share software for as hobbyists akin to stamp collectors, and "bootleggers." Bootleggers are persons who distribute software for material gain. Pirates may copy and install programs, but generally their goal is to collect, and they derive satisfaction from running programs for which they have no need and that they will rarely, if ever, use. Second, software pirates--despite the claims of the SPA (Software Publishsers Association)--report spending considerably more money purchasing software than the average user. Many of these purchases are for trading, and there is a strong ethos in the pirate world that if one uses a program, one purchases it. Reasons for purchasing include documentation, acquiring informa- tion about and discounts on updates, and on-line technical sup- port. It is quite common for pirates to purchase identical pro- grams to those they have already obtained. Third, the "no return" policy of most software merchandisers makes it difficult for potential buyers to assess the ability of a program to meet their needs or work adequately on their system. Piracy creates an informed public by assuring that programs are available for pre-testing, by providing a pool of reasonably lit- erate users to publicly discuss the merits of competing products, and to even offer technical assistance to those who have pur- chased a program. In this sense, the "unauthorized" copying of software can be seen as contributing to the university mission of expanding knowledge, of preventing exploitation of consumers, and above all, to the expansion of computer literacy contributing to the free flow of information. Fourth, pirates spend a considerable sum on their hobby. Among the most active topics of discussion among pirates are those of the need to endlessly upgrade, the endless purchase of diskettes on which to store programs, and--with the popularity of 9600 baud modems--the advantages of investing between $600-900 for expanding telecommunications hardware. Because most pirates exchange software across telephone lines, piracy has benefitted telephone companies because of the growth of Bulletin Board Sys- tems (BBSs). Our data indicate that an average monthly phone bill of $200 or more is common, and active pirates easily double that cost. Fifth, there is simply no evidence to corroborate the claim that piracy deprives authors of revenue. Our data suggest that pirates annually purchase no less than three times the 1.5 pro- grams the SPA estimates for the "average" user, purchases direct- ly related to the hobby rather than a need. Further, few students or faculty could afford the price of Dbase 4 and other large pro- grams, and few people could afford to spend several thousand dol- lars a year on computer games. Traded programs would simply re- main unpurchased. Because piracy creates an interest in software, expands consumer literacy, and contributes to a "user culture" that benefits the industry as a whole, we suggest that without such a culture there would be less interest in software and, con- sequently, less revenue for authors. Sixth, the claim that piracy is unethical is usually a glib one made without a strong rationale. Although we make no metaphy- sical claims here, we do suggest that the appeal to ethic in at- tempts to criminalize piracy is far too serious to be so glibly asserted, and the underlying issues require far more research and debate. Even in the debates over VCR reproduction and photocopy- ing books or journal articles, the appeal to ethics was never ad- duced as stridently and self-righteously as in discussions of software piracy. The rapid growth of computer and telecommunications technol- ogy brings with it new ethical, legal, and practical questions of the nature of "private property," free and open access to infor- mation and resources, and definitions of "authorship." Few among us condone any form of predatory behavior. However, we find equally disturbing the tendency to assumptively assert claims and definitions that rightly should be brought into a public forum for debate rather. The University has the obligation to protect the law, but it also has an equal obligation to do so responsibly without contributing to the current hysteria surrounding alleged "computer crime." =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ The preceding article is from the Computer Underground Digest Issue #1.03 / File 5 of 6 available on USENET, BITNET, Compuserve, and various other interesting places. Gordon and I wrote the following for Northern Illinois University's THE COMPUTING NEWS. It was not published for two reasons. First, despite the fact that our comments are drawn from an on-going research project, it was considered "opinionated." We were in a catch-22 situation: We were required to work within severe space constraints, and could present neither data nor other research citations, yet, we were also advised not to make the article "too scholarly" for a general audience. Second, and apparently most important, we were told that if the article were published, it would appear to violate the NIU policy, so was inappropriate. Only through the most adept feat of intellectual aerobics could such an interpretation be made, because we were then, and our article is quite explicit that, in no way opposing the policy, but only the rhetoric in which it was presented. Our goal was to debate the rhetoric, not the policy. Such a rationale strikes us as the CHILLING EFFECT that has occured because of recent hysteria surrounding alleged computer abuses, and we find it quite ironic that a University, normally the cornerstone of debate, seems to be stifling debate on this issue. So, we present it here instead. We have seen an earlier version of this article floating around on bulletin boards, but this is the final, "official," version. Jim Thomas / Gordon Meyer ******************************************************************

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