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Who Are You Calling a Software Pirate?

I, too, was happy to see that the good guys won in Sunday's conflict in the Indian Ocean.

That's not my opinion as a technology journalist, but as an American. But since then, one aspect of this story has intrigued the tech-journalist part of me: When we have such a graphic example of what real pirates do, is it appropriate to apply the same noun to people who use commercial software without paying for it?

The NYT's always-interesting Freakonomics blog raised that question yesterday. Stephen J. Dubner wrote that "as real-life pirate attacks have gained in intensity, violence, and geopolitical meaning, talking about digital thieves as pirates has come to seem clever to a fault, and inaccurate too."

The Business Software Alliance, a trade group devoted to stopping people from using commercial software without paying for it first, does not agree. Also yesterday, the CNet tech-news site reported that a BSA publicist sent an e-mail explicitly comparing thugs hijacking supertankers to software thieves: "Piracy takes many forms, some more violent than others."

(Writer Gordon Haff called that e-mail "one of the most tone-deaf and cynically opportunistic PR pitches I've seen for quite some time.")

I believe that people should pay for the commercial software they use. If you can't or don't want to, there are plenty of open-source alternatives you can use honestly; see these three sites for help with that.

But I don't support the BSA's vocabulary, just as I don't appreciate other attempts to equate duplicating a file on the Internet with the taking of physical property by force. When I once heard a copyright lobbyist on a radio interview describe music and movie file-sharing as "economic terrorism," I felt like grabbing him by the lapels and explaining -- at great volume and with numerous expletives -- that I'd seen that cloud of dark gray smoke rising from the Pentagon on 9/11 and knew damn well what terrorism looked like, so he'd better not use that word unless he really meant it.

(Note that I also hate many of the other euphemisms of Big Copyright, like "copy protection" -- more accurately called "copy prevention," "usage restriction" or "copy controls.")

But if we're not going to call people who don't pay for their copy of Microsoft Office "pirates," what word should we use to describe their activity and place in its proper moral context?

Blogger John Gruber suggests the term "bootlegging," but I'm not sure about that noun either. To me (a one-time concert reviewer for the Post), it evokes homemade recordings from concerts, an activity that demands individual initiative and, when done right, creativity. Installing a copy of a program on two computers doesn't require much of those qualities.

"Software theft" itself suffers the problem that theft, by definition, involves the victims losing the stolen property:

the act of stealing ; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it

That doesn't happen with digital media, where somebody installing a not-paid-for copy of Office doesn't stop your copy, mine or Steve Ballmer's from working. Rather, the key concept here is that somebody has short-circuited a normal business transaction through deceit or trickery. And for that, the most apt definition appears to be "fraud":

deceit, trickery ; specifically : intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b: an act of deceiving or misrepresenting

Does "software fraud" work for you? What terms would you use instead? The comments are yours...

By Rob Pegoraro  |  April 14, 2009; 2:08 PM ET
Categories:  The business we have chosen  
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Comments

Unlicensed duplication?

"Whaddya in for?"
"Ud."
"Oh."
"Hm."

Posted by: annoyed5 | April 14, 2009 3:05 PM | Report abuse

Creating unauthorized copies of digital assets is essentially victimless (unless used for profit). Therefore I don't think you can take the name of any real-world crime and apply it accurately. The only legal term you could use is infringement, since that's what it is. But that's not very evil-sounding so the industry won't use it.

If you look at it from an economic standpoint, what's happening is the Internet is transforming software, music, and movies into public goods against the will of the providers. Those making their own copies without payment are then free-riders on those public goods. Why not call it that?

Other possibilities:
- mooching
- squatting
- free-loading
- maybe build off tingo: to keep borrowing from a friend until there's nothing left

Posted by: divestoclimb | April 14, 2009 4:39 PM | Report abuse

bootlegging is actually a name that has also been given to (mostly chinese) groups that duplicate the graphical packaging and content of a product and sell it for substantially less. (look on ebay for Japanese Animation for example, a lot of it has chinese subtitles and english subtitles but no dub, which is usually a good sign that it is a "bootleg")

Posted by: Shiipon | April 14, 2009 4:44 PM | Report abuse

Since the politically correct term for illegal alien is "undocumented immigrant", it logically follows that the term you're looking for is "undocumented software". :-)

Posted by: jimdouglas | April 14, 2009 6:06 PM | Report abuse

Rob,
Thanks for your input, mainly regarding semantics. The underlying legal and policy issues are more complicated than most of us would like to admit and nobody knows where we will be in 10 years. The concept of intellectual property is relatively modern and is universally seen as progress, allowing authors, artists, composers, scientists, etc. to actually turn a profit on their work. The underlying thought, beginning in the 18th century was that it was for the general good to reward creative thought. Copyright law is anchored in our Constitution, primarily to encourage scientific innovation.
In this context, copying and sharing CDs, software, DVDs, as well as printed materials represents theft. Piracy, in the sense of illegal "borrowing" or temporary possession is not off the wall, but perhaps draconic in the present day, as software copiers are not asking MS for a ransom. They are "only" wanting to use it without paying for it. Fraud would not apply to the violation of contracts and hence would seem inappropriate. Violation (of contracts or copyright) would seem more suitable.
This said, no expert I know knows where we are going to land with this. The USSC, where some of these cases will ultimately land, as well as similar international bodies will certainly weigh the benefits to society of creative thought against the ease of distribution of creative contribution. Historically, the easier distribution has become, the more protections for writers, artists, etc. have been instituted. The internet has reshuffled the cards and we will see how this will ultimately play out.
-Jim

Posted by: jim24 | April 14, 2009 8:24 PM | Report abuse

I don't care much for the term either, but it has apparently been sanctified by inclusion in Merriam-Webster: "to reproduce without authorization, especially in infringement of copyright".

And yeah, the term "economic terrorism" is over the top for unauthorized copying.

Posted by: 54Stratocaster | April 14, 2009 8:25 PM | Report abuse

Stick to your day job and let lawyers handle legal issues, Rob.

You said: "But I don't support the BSA's vocabulary, just as I don't appreciate other attempts to equate duplicating a file on the Internet with the taking of physical property by force." The issue is not force in theft. Usually, no force whatsoever is involved. The key aspect is the person did not pay for an item he will derive benefit from possessing, nor was it a gift. That applies to theft of digital content just as much as to theft of tangible things. Your other argument also misses the point. Users of legal software do lose something as a result of piracy. We pay more for our legal software to cover the costs of piracy and other forms of theft. In addition, we are subjected to inconvenience by having our right to use legally purchased software challenged at times.

I don't have a problem with calling commerce in illegal software piracy, or, theft. A euphemism would just cover up the truth of what is going on.

Posted by: query0 | April 14, 2009 11:17 PM | Report abuse

Thievery, fraud. Both are good.

@jimdouglas
"Undocumented software" already has a meaning and, while it may cause people to consider issuing terroristic threats against developers it is not, in itself, illegal.

Posted by: wiredog | April 15, 2009 7:50 AM | Report abuse

The obviously right term is "poacher": someone who takes a non-approved view of the boundary between private and public property.
This crime was created when William of Normandy conquered England, and declared that the forests (and all the animals in them), previously free-access to anybody, now belonged to him or his barons. Saxons who disagreed kept on setting snares for rabbits. Those who were caught were killed or (later) sent to Australia, which explains a lot.

Posted by: geometeer | April 15, 2009 10:22 AM | Report abuse

What term is appropriate to describe one who uses the soft wear on two computers that he/she owns. Since the program is sold to the person,Would it be piracy to do that?

Posted by: rayaruster | April 15, 2009 10:57 AM | Report abuse

Query 0 has it exactly right. But if we don't do everything we can to maintain ownership of and revenue generation from software development we will lose the international economic battle in that industry as we already have in manufacturing of virtually all goods, clothing, furniture, steel and autos. We have proven to be great innovators. Less developed countries have proven to be better, less expensive imitators. There are countries that promote stealing software to their own benefit. They are stealing money from developers and trying to take something not theirs. The terms theft and piracy sound about right. And if "economic terrorism" sounds like too rough a term then how about "stealing American jobs."

Posted by: davequixote | April 15, 2009 11:13 AM | Report abuse

I'm all for changing up the terms for downloading illegal software. Right now terms like "piracy" and "software theft" make it seem like these are isolated incidents by a few malicious individuals.

The fact is many people illegally download software over the Internet. Their reasons range from gamers who want to try a game before they buy it, non-graphic artists who want a copy of Photoshop, and students who can't afford to buy a copy of Office.

Now regardless of whatever reason people use to justify illegally downloading software, it doesn't change the fact that it is illegal. The problem is software companies don't distinguish the casual downloaders from the more anarchic ones, that is people who download software simply because they do not believe in paying for it.

Both groups are committing a a crime when they illegally download software. The difference is the casual downloader doesn't perceive their act as harmful.

Calling them a thief of pirate will simply make them angry, and more likely to illegally download software out of spite. Meanwhile the anarchic downloaders will wear those titles as a badge of honor and keep on downloading no matter how many of their sites get shut down.

The industry needs to realize that their current methods of education, prevention and prosecution are not working. They need to take a step back and look at the larger picture of illegal downloads, and then make a new strategy around that.

Posted by: fletch02 | April 15, 2009 11:50 AM | Report abuse

Rob, while I agree that the unauthorized duplication (and use) of software is not the moral equivalent of taking physical property by force (a formulation that closely approximates the ancient definition of robbery, "the depriving of possession by force or fear (of force)," it's a LOT closer to the taking of physical property by stealth (think burglary) or deception (fraud).

Piracy is the wrong word too in an era where a handful of teenagers with automatic weapons commandeer cargo vessels and get multimillion-dollar ransoms.

Isn't the problem with software "pirates" that they have produced or use software without having agreed to whatever terms the author(s) have attached to production or use? In that case, the correct term is "unlicensed software," in the very same sense as an unlicensed driver travels the roads, or an unlicensed business operates under the radar of regulators or taxing authorities. If "unlicensed" doesn't have the required gravitas, remember that we can always add gravitas to a term (much like seasoning), which is a far better solution, from the perspective of logic and preserving the language, than applying an inappropriate word to the behavior just because that word happens to prompt the properly-calibrated amount of moral outrage in listeners.

Posted by: ChrisBieda1 | April 15, 2009 1:04 PM | Report abuse

The use of the word "piracy" to denote copyright infringement is not a creation of the Business Software Alliance or any other modern industry. As noted above, Merriam Webster's Collegiate Dictionary gives one definition of piracy as "the unauthorized use of another's production, invention, or conception, esp. in infringement of a copyright." In fact, the use of the term dates all the way back to British law in the early 1600s. Clearly, there are other terms that mean the same thing, and we can quibble over the unpleasant connotations of "piracy" in light of recent news. But it's a commonly accepted English word for this meaning. It's also important not to lose sight of the underlying problem -- that around the world, more than a third of all software programs installed are illegal copies -- and this has serious negative impacts for everyone. It spreads computer viruses, increases the chance of your personal information being stolen, and reduces employment in IT sales and services. As one of your readers notes, it is especially important to curb illegal software in the current economic climate, when the IT sector is still one of the strongest sources of productivity and employment in our economy.

Posted by: dalecurtis | April 15, 2009 6:43 PM | Report abuse

Copying software without paying is perhaps like riding public transport without a ticket, thereby making the journey a little less agreeable for the fare-paying passengers - although public transport generally runs at a loss, a concerpt unfamiliar to the mighty IT industry.

"Free-loading" or "stowing away" may not sound wicked enough for the industry's purpose. Perhaps "scrounging" or "bludging" expresses a reasonable, necessary and sufficient measure of contempt for the individual concerned.

Posted by: MartinJoKing | April 15, 2009 6:59 PM | Report abuse

Just because it's free doesn't mean someone else didn't bootleg it. I assume the VLC folks (linked in the Lifehacker post) aren't paying for that MPEG-2 codec...

Posted by: davezatz | April 15, 2009 9:43 PM | Report abuse

@davezatz

What makes you so certain about that?

Posted by: fletch02 | April 16, 2009 12:51 AM | Report abuse

If copyrights go the way of privacy and the dodo, the future will perceive "software pirates" as freedom-fighters. So, what about "software liberators"?

Posted by: jorge_mt | April 16, 2009 2:07 AM | Report abuse

fletch, VLC uses the ffmpeg codecs and the folks who own the MPEG2 intellectual property aren't being paid royalties by the producers or users of that software.

Posted by: davezatz | April 17, 2009 7:15 AM | Report abuse

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