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Software Piracy: An Alternative View. by Independent (IND)

1 of 2 files jim thomas
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 activeities of "phreaks, hackers, and pirates," we find no evidence to support the many value judgments offered in the rationale circulated by the university.
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SOFTWARE PIRACY: AN ALTERNATIVE VIEW
Jim Thomas and Gordon Meyer
(5 March, 1990)


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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."

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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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