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Ambivalent Decisions

Is it wrong to copy proprietary software?

Prologue:

"Software is one of the most valuable technologies of the Information Age, running everything from PCs to the Internet. Unfortunately, because software is so valuable, and because computers make it easy to create an exact copy of a program in seconds, software piracy is widespread. From individual computer users to professionals who deal wholesale in stolen software, piracy exists in homes, schools, businesses and government. Software pirates not only steal from the companies that make the software, but with less money for research and development of new software, all users are hurt. That's why all software piracy - even one copy you make for a friend - is illegal."[BSA]

"Software is written by individuals (or groups of individuals within a corporation) who are entitled to just compensation for their work. By copying software without due compensation, we are stealing or cheating the writer out of his/her rightful wages. As such we are stealing from that individual just as certainly as we would be stealing from that individual if we took their paycheck, cashed it and spent it on ourselves. In such a context, stealing software is not only legally wrong, it is also morally wrong." [Smith 2000]

"Nonetheless, it is prima facie wrong to make an illegal copy of proprietary software because to do so is to deprive the owner of their legal right, and this is to harm them." [Johnson 2001]

Introduction:

Respecting proprietary rights helps to maximize the happiness of the majority of software users and people who benefit collaterally by excellent software. This happiness is realized when state-of-the-art software is produced and available. Shortsighted, selfish individuals and companies that use software are able to receive more immediate gratification by supporting or engaging in software piracy. In the case of Pirate Pete, a character portrayed in scenario 6.2 of Computer Ethics by Deborah Johnson, software users experience an immediate increase in happiness for the short run through the better prices and improvement over Bingo's product that Pirate Pete offered. But, the real genius behind the creation of the product was forced out of business by Pirate Pete's actions. The disillusionment Bingo experienced through Pirate Pete's actions increase the chances that Bingo will loose his incentive to produce quality software in the future. The software users get a bonanza in the short run, but they are ultimately deprived of any increased happiness that would have been derived from future creative works done by Bingo. On utilitarian grounds Pirate Pete has diminished the overall happiness that could have been achieved. By doing this he has not only wronged Bingo, but also he has wronged all of the current and future software users that could have benefited by Bingo's work. Carol, the character in scenario 6.1, also contributes to diminished happiness of the majority by supporting the piracy trade with her purchase. In Carol's case the death knell is not delivered quickly to one company like Bingo's, but rather she contributes to the diminished incentive of all legitimate software producers affected by the software piracy industry. If there were no market for pirated products black-market trade in software could not thrive.

Generally, software developers do not deserve this treatment, although they are easy targets for it by the nature of software. But there is a time when the legitimate software industry can contribute to the diminished overall happiness of legitimate software users through unnecessary license agreements and the need to manage them. The taxpayers' analogy later in this paper will help to clarify under what circumstances the industry may be culpable.

Immanuel Kant's categorical imperative states this, "Act only on that maxim whereby thou canst at the same time will that it should become a universal law." A form of action may be just when there is no means available by which one could do better. However, as innovation, invention, and knowledge increase that action that was once considered just may become gravely wrong if it is continued. Software license agreements served a necessary purpose protecting the proprietary rights of those who actually own the software. Software as an extremely vulnerable commodity needed this form of protection. However, when this vulnerability can be eliminated by a technological means that are universally acceptable to legitimate users, it is wrong to continue to shackle legitimate users with the burdens that accompany license agreements. Immanuel Kant would want us to respect the vulnerable. But when that vulnerability is easily eliminated and old mechanisms of protection become a constant worrisome and unnecessary burden that persists, Immanuel Kant would suggest that it is time to take steps to remove the albatross.

General Background will look at the current software situation. The Workplace exposes problems that exist there. A better way! Fact or Fallacy reveals what can make copying of proprietary software a non-issue. Taxpayers' Analogy explores a scenario where the right thing to do to is that which is necessary to cast off the shackles of an obsolete and now abusive system. The Fools' Money Analogy questions whether or not a fool and his/her money should be parted. Finally the Conclusion suggests that while generally it is wrong to copy proprietary software a time may come when it is a civil duty for legitimate users to engage in this practice to effect change in the current state of affairs.

General Background:

Is it wrong to copy proprietary software? If it is wrong then why is this practice so widespread across such a large gamut of the population? In "Scuttle the Computer Pirates" Richard Baker writes that, "In some circles it is considered fashionable, not dishonest, to copy programs and to give or sell them to your friends."[Baker84] Many easily rationalize that the inappropriate appropriation of software is only a minor peccadillo if it is wrong at all. More people would be outspoken against software piracy if its seriousness were obvious.

The Business Software Alliance, otherwise know as the BSA in this paper, leads the charge in attempting to educate people and businesses about the harms of software piracy. Software piracy is the moniker given to the wrongful copying of proprietary software. The BSA is also the primary prosecutor of software pirates. Whether it is an individual, an academic institution, an organization, or a corporation, knowingly or unknowingly having illicit copies of software on their systems makes them fair game for prosecution. If copying proprietary software is only a minor peccadillo the consequences of getting caught carry more pain than fits the crime.

Legitimate ownership of the rights to use a software product carries benefits for the purchaser. Generally along with the purchase the user has access to good tech support, good documentation, and sometimes a guarantee of satisfaction. Legitimate software generally has a considerably lower probability of containing a virus. The purchaser may also receive notices of updated versions with the right to upgrade at a reduced price. Sadly, the access to good tech support, good documentation, and guarantees of satisfaction sometimes fall way short of what the advertisements for the software promised. When this occurs a purchaser can feel ripped off and foolish for wasting his/her money. Shareware solves this problem by letting the user legitimately try the product before purchasing. Retail software tries to solve this problem with their sometimes-offered guarantee of satisfaction. Returned software does not always result in a returned check. People already have a strong propensity to justify the pirating of software on a small scale without experiences like these. When negative experiences involving software purchases happen even stalwart convictions against pirating may be tested.

The Workplace:

There are two sides of the pirating coin in the workplace. On one hand, an employer has to be concerned with employees installing unauthorized copies of proprietary software on company systems. An employer is likely to bare the ultimate brunt of any enforcement actions taken against him/her for illegitimate software placed on a companies system by an employee. Whether the employer is aware of this activity or not, the employer can be held responsible for the contents of his/her systems. Effective guidelines, policies, and resources to properly manage license agreements need to be in place and enforced if an employer wants to be immune from the sting of a BSA enforcement action. On the other hand, an employee may be faced with an employer that wants him/her to work with pirated software, install it on company systems, or even make copies to give to the employer's buddies. If an employee is bothered by scruples this is not a pleasant position to find one's self in. Who is the responsible party when the time comes to click the ubiquitous "I Accept" button? Is it the employer who told the employee to install the software, or is it the employee that actually does the installation and clicks the "I accept". Piracy avoidance in the workplace can be a challenge for both employee and employer alike. After being on the employee side of that distasteful situation for the second time I told myself that there has got to be a better way.

A better way! Fact or Fallacy?

Alan Freedman in his Computer Desktop Encyclopedia puts it like this, "A system similar to the hardware key designed into the personal computer from day one should have been established. Perhaps some day a solid-state software capsule with a digital signature will plug into the computer. In the meantime, anyone who can figure out an economical way to prevent unauthorized duplication of digital material that does not interfere with managing a hard disk or the quality of the original transmission will become a zillionaire overnight!"[Freedman99]

Except for the hardware key, protection schemes were met with widespread consumer resistance in the early days of software for personal computers. Except for the hardware key and some new Internet based methods protection schemes are now virtually non-existent. Legal methods such as copyright, trade secret, and patents have dominated the protection landscape. In Deborah Johnson's book, Computer Ethics there is virtually no mention of any protection schemes or their problems, she only discuses current legal protection. This is a boon for lawyers, but neither the consumer nor the software producer is best served by the current status quo. "Tracking software licensing from a single-vendor source can be a headache. But trying to comply with software agreements can get downright complicated for managers who must manage licenses from multiple sources and at the same time administer a group of users who work with different applications at different times." [Brandel94] But, when trying to derive a better solution, "All existing schemes have significant drawbacks to universal use in place of legal remedies. Until an infallible technical solution is devised, the software industry will have to rely on legal remedies, and suffer from the imperfections of an imperfect legal system devised for imperfect humans." [Davis85] Even when an infallible technical solution is devised it may have difficulty finding the light of day.

After telling myself, "There has got to be a better way" just such a way that Freedman insinuates was necessary from the beginning came to me. However, it is unlikely that it will make me a zillionaire overnight as Freedman states. In fact, not being interested in making any money with this idea and only wanting to escape the ubiquitous and annoying "I Accept" button forever more, I called Microsoft to give them the idea. They couldn't be bothered with hearing it over the phone and told me to work something up on paper to send to them. I decided that if I were going to take the time to work something up it would not be Microsoft that received it, but rather my patent attorney. After a patent search my attorney recommended that I not pursue because of the plethora of prior art that exists along similar lines.

So if there are similar ideas out there and it seems to be such a good idea, why is it not in existence? Most of the patents were filed in the early days of software when protection schemes were abundant and deplored. Technological thresholds likely prohibited a satisfactory solution from emerging. Consumer discontent with the "I accept" method of submitting to a license agreement constraints and the current need to expend resources to tediously manage license agreements was non-existent. Therefore the need was not pressing enough for a suitable means to emerge.

Here is a simple example of the absurdness of license management on a small scale: A consumer purchases a digital camera that comes with the software necessary to download and manage the images s/he takes. The camera can only store a small number of pictures before downloading is necessary. The consumer only owns a desktop computer so extended trips are a problem. The consumer's license agreement states that the software can only be installed on one computer at a time. The consumer can easily carry the software with the camera, and knows someone with a computer on the other end of his/her trip that will allow the software to be installed so the pictures can be downloaded and copied to another storage media. To follow by the letter of the license agreement the consumer has to uninstall the software from his/her own machine, install and use it on the other machine, then uninstall it from the other machine when done, and finally reinstall it again on the original machine. The consumer may also receive a little pressure from the person who let him/her use the other computer to leave the software on it rather than uninstalling it when done. This is a lot of rigmarole the consumer must follow simply to use his/her camera and software legitimately.

In the Obsolescence of Software Piracy Potential Through Superior Architecture I outlined more thoroughly a device I call the "Piracy Deterrent Bar" otherwise known as PDB. This paper can be found at: http://members.tripod.com/ChemCom/articles/CA2000/Obsolescence_of_Software_Piracy_Potential.htm. The PDB is the idea that came to me after the second employer wanted me to engage in software piracy. Until it can be clearly shown why such a device will not work I am disillusioned toward the software industry. Why do they make us endure the absurdities of the "I accept" button? Why should I speak out against piracy when the software industry can make it a non-issue by simply listing a PDB as a necessary item under their system requirements?

The software industry can with the right computer technology substantially ease the burden of proper license management. Rainbow Technologies, a major manufacturer of hardware locks, has been given a copy of the paper detailing the PDB. The BSA has been given the above link to the online copy of the paper. I submitted an abstract of the PDB to the Excellence in Government technological awards program so that notable people in the industry will view the concept. It is one thing for a practice to exist because of ignorance of a better way, such as in the old days when doctors drilled holes in the heads of patients to relieve the pain of headaches. It is quite another thing for a practice to continue to take place when it is evident that a better way is indeed feasible and possible and yet the old way with its problems persist.

Taxpayers' Analogy:

A couple of analogies should make the potential absurdity of the software license agreement clear. In the first analogy consider a civilization that extracts taxes from its citizens. The taxes are important because they aid in the support of the civilizations infrastructure, which helps to make life easier and better for all of its citizens. There is no method to pay the taxes other than in person. For security reasons the tax collection agency is located on the upper level of a large building. The civilization has not yet invented ladders or stairs. The only method that exists to reach any upper levels is to climb by rope. People willingly pay their taxes and submit to climbing the rope. They understand how important taxes are to their overall happiness. Some people can easily climb the rope. These are those who can easily wade through a license agreement and fully understand the consequences and implications before clicking "I accept". Other people have to struggle up the rope with difficulty. Sometimes they simply take their chances and toss the payment up rather than climb the rope, because they feel they can trust the tax collector currently on duty to properly log their payment or they are simply too lazy to make the climb. These are those who more often than not simply click the "I accept" without reading it as they are admonished to do. If they did take the time to read it, they probably could comprehend the implications of what they were accepting. The last group is not able to climb the rope. They have to rely on someone else to climb the rope and make the payment for them, or they too simply toss the payment up to the current tax collector and take their chances. These are the people who are unable to comprehend the legalese of a license agreement even if they took the time to read it. Depending on the seriousness of the agreement they would be better off hiring a lawyer to council them on whether or not they should accept its terms. More often than not they simply click "I accept" and go on with their lives hoping for the best while being blissfully ignorant of the potential consequences of the acceptance click.

All is well. The citizens are content and happy even with the rope procedure. Gradually though new-fangled devices start to appear; stairs and ladders. The people are amazed at how easy these devices enable them to reach upper levels. While these devices become widespread, the people notice that whenever it is time for them to pay their taxes they still must climb the rope. Security is first given as a reason, but it becomes apparent that other methods are available to achieve this security. The people have been content previously. But, a feeling of abuse begins to set in especially when they are faced with their turn to climb the rope after getting used to using stairs elsewhere. A few who have simply tossed their payment up have faced nasty consequences caused by the shenanigans of unscrupulous tax collectors. Widespread discontent imbues the whole civilization. The citizens continue to use the infrastructure amenities but rebel at having to climb the rope to pay their taxes. The infrastructure falls into disarray, some citizens are made examples of, but there are too many now refusing to climb the robe to continue to maintain the old system. Eventually the tax agencies install stairs and ladders and do away with all the ropes. The citizens once again become supportive of the infrastructure. All is well and even better than before now that their happiness is maximized in light of the current technology.

Fools' Money Analogy:

Software is a particularly vulnerable technology. This vulnerability is evidenced by the ease that piracy can and does take place. Up until now the software industry has been doing the best it can with a difficult situation. Even though software is easy to pirate many good people once enlightened to the harms of piracy willingly do their best to abide by the license agreements that accompany software. This can be likened to a person having no better means to protect their money than to keep it in their wallet. An occasional mugging or robbery takes place that relieves a person from their money. But, for the most part even though many people have the ability to take someone's money from him or her, people respect their rights and leave the other persons money alone. Now if a person foolishly flashes their money or leaves it lying around where it is easy pickings the situation changes. They become more likely to be separated from their hard earned money because they could easily do a better job at safeguarding it. Would you take your hard earned paycheck and leave the cash lying out in the hall on purpose while you go to lunch or even go home for the weekend? If you did do this, do you have a right to expect that it will still be there when you return? If the situation was such that you had no choice along with many others, it is likely that society would have some behavioral constraints that protected your money. But, if it is obvious that you are being just plain stupid and could easily take other measures to protect your money, it is likely that those who deprived you of your money were doing you a favor so that you might know better when the next time came around that may involve even larger sums. Should a jury reward stupidity?

Conclusion:

Is it wrong to copy proprietary software? As things now stand and based on the current reasoning found in the prologue, in Deborah Johnson's concluding essay for chapter 6 of her book Computer Ethics, and in many other sources on the subject it is indeed wrong for a person of conscience and scruples to copy proprietary software. Those who have no conscience or scruples are still subject to the sting of enforcement if they are caught. However, it may become a civil duty for even those with ethics to copy and encourage the copying of proprietary software once it is obvious that the shackles of license agreements and their tedious management is an unnecessary burden that should fade into history. Also, if there is an easily obtainable and globally acceptable method available to protect software from unauthorized use then a software company that fails to incorporate these measures into their software is just plain stupid. Like a person leaving their cash in an unwatched hallway they probably deserve to be parted from its benefits especially if they easily could have done better. An "Amicus Curiae" brief should be filed with the courts alerting them that a better method is now technologically feasible to protect software, and enforcement actions for license infringement amount to little more than harassment of software end-users.

It is time for a paradigm shift in the protection of software. People who make their living through enforcing of copyrights on software like the BSA and even the pirates who benefit from the easy pickings of software may not be happy with this shift. But, surely the honest software developer and honest end user all tend to gain enormously by this shift to a better way. Nonetheless, it is prima facie wrong to burden legitimate users with unnecessary license agreements because to do so is to deprive the users of their natural rights to be free from needless harassment, and this is to harm them.

Bibliography

Book
Bibliography Book [Baker84] Baker, Richard H. Scuttle the Computer Pirates: Software Protection Schemes. Blue Ridge Summit, PA: Tab Books Inc., 1984

[Davis85] Davis III, G. Software Protection: Practical and Legal Steps to Protect and Market Computer Programs. New York: Van Nostrand Reinhold Company, 1985

[Freedman99] Freedman, Alan The Computer Desktop Encyclopedia. New York: AMACOM, 1999.

[Johnson2001] Johnson, Deborah G. Computer Ethics New Jersey: Prentice Hall, 2001

Internet
[BSA] Business Software Alliance, Anti-Piracy. http://wwww.bsa.org

[Brandel94] Brandel, William Computerworld 04-18-1994 New technology may ease licensing headache. Record(Bergen County), Electric Library

Personal Critique
[Smith2000] Smith, R. P. Ph. D. Arkansas State University, Computer Science Department - Critique to Computer Architecture paper: Obsolescence of Software Piracy Potential Through Superior Architecture