Shocked by our community's response to piracy

16 Comments

• One of the nasty problems with software is that they violate the sense of fair use that consumers have taken advantage of for years. When one of my friends goes out and buys a new Metallica CD, we're all going to physically make a copy. Until the digital revolution, the right to make bootleg copies to distribute to family and friends was clearly outlined by the law. To this day, people swap CDs, DVDs and books with each other in the physical medium and we accept it.
  
  
  
  The problem with software is it doesn't exactly work like that. While content providers should suck up and deal with the swapping of physical media, its very unreasonable for them to suck up and deal with digital swapping, where the potential audience per asset sold is much much higher. At the same time, software has imposed the concept lately of "1 copy, 1 user", which flies in the face with the rights consumers have had for generations. Why is it okay for me to trade XBox games with friends, but not okay for me to trade PC game CDs with friends.
  
  
  
  When you couple this with the fact that productive software ala MS Office / Photoshop / Visual Studio / etc tends to be priced towards corporate buyers instead of consumers, you end up creating a market where people almost have to rationalize stealing software ala "Its okay for me to use MS Office at home, because my employer got a copy at work, and 90% of the things I'll do at home with it are for work, so its unfair I should have to buy it".
  
  
  
  Personally, I keep a physical media rule. If a friend lets me borrow his CD, I'll rip it so I can have a copy for myself, likewise with movies. In terms of software - if someone lends me the Doom3 CDs, I'll play them without buying, but I won't make a copy, so when I give the CDs back to my friend, the game won't work for me anymore. Since that works in the same spirit as "Sure you can borrow my book", I feel fine doing it.
  
  
  
  I think the people in this country need to have a serious talk about fair use and media - its unreasonable to think that consumers should blindly accept their fair use rights being revoked by media companies, and its probably similarly unreasonable to think that they'll boycott media empires when its basically a giant monopoly. Is civil disobedience the right answer? Maybe. And for that reason, while I don't participate in software piracy any more than I admitted to above, I don't tend to smack down on those that do.
  

• Fair use applies to something you own, which in most cases means something you paid for. Copying a game from a friend is not fair use. There are other fair uses, that do not require you to own whatever you're using, but those do not apply here, they're things like satire, political speach, news and so on... Copying a game from a friend (or a rental place) is not fair use, no matter how much you want it to be.
  

• Fair use, as defined by the United States Supreme Court, hasn't changed much insofar as copying rights since Sony Corp v. Universal City Studios, 464 U.S. 417 (1984) (Docket Number: 81-1687), the infamous Betamax case - In that case, the bench ruled that copying to/from physical media caused minimal harm to the value of the copyrighted work. Although they did not expressly reserve the right of consumers to copy works, by denying Universal a criminal and/or civil antidote to their grievances, they effectively did. In more recent times, Kelly v. Arriba Soft Corporation (1999 U.S. App. LEXIS 1786) upheld the doctrine that even in the digital age, free distribution of reduced quality copies of media is appropriate and governed under fair use. Even in the Napster case, althought Napster obviously lost, the court found for the plaintiff on the grounds that Napster violated the copyholder's right to distribution, and to mass reproduction - the court ruled that the other three points were permitted under fair use (upheld by the 9th Circuit).
  
  
  
  Stepping back from straight-letter law for a second, this is exactly what society has been doing with books for hundreds of years - to a significantly greater extent when you consider libraries. If you can honestly tell me that its wrong to borrow a technical book from a coworker's bookshelf then you've been deceived by mass media, my friend. Fair use for media rights applies equally across ALL types of copyrighted media. Software is a tricky point on it since software is not a passive media and thus subject to patent over copyright, and the jury's still out on that one.
  

• Re: Copying.
  
  
  
  I don't think copying software is fair use. Its not a passive media and isn't acknowledged as a consumer right as "legitimate bootlegging".
  
  
  
  But I didn't say I did copy games - I said I'd borrow them without copying. Although shrinkwrapped liscense may have problems with that, that doesn't make it illegal by any stretch of the imagination. In fact, maintaining the view of physical media space shifting (the right to give a book to a friend), I submit its wholely legal solong as multiple parties can't use the same software at the same time.
  

• You know that's not what anyone here is talking about, so why are you trying to take some intellectual high road that has nothing to do with piracy? See: Jerry's post. Ten people download the game and play it, that's piracy.
  

• ????
  
  
  
  We're defining piracy. I agreed in my first post that downloading games will-nilly off the net and playing them was piracy. You said that the idea of playing a game from the original CD you didn't purchase wasn't fair use. I was just responding.
  

• No, you're bringing fair use into an issue that has nothing to do with fair use. You're arguing about Coke vs. Pepsi and we're talking about piracy.
  

• Fair use applies to software, especially games, because games more than any other software lie on the cusp between patent (where the law favors of the inventor and corporations) and copyright (where traditionally the law favors the consumer).
  
  
  
  Consider how its legal to rent a game at Blockbuster - Back in 1987, Nintendo saw the idea of multi-use copies of their games to be an infringement of their rights as the producer/inventor. But the courts ruled, based almost entirely on fair use, that Blockbuster was free to distribute Nintendo's games in time-share fashion to a mass audience at a fraction of the original cost of the product. While the court restricted the right of Blockbuster to do this, Nintendo lost ultimately. Blockbuster was able to force its business distribution model above Nintendo's, even though Nintendo was the copyright holder for the software.
  
  
  
  That distribution model is conventional wisdom today - everyone thinks in terms of renting media. But what's interesting is that Blockbuster is not required by law to distribute with a cost - if Blockbuster wanted to lose money, they're more than legally capable of giving everyone free game rentals. The only condition is that they are forced to buy a copy of the original game from the publisher. Congress stepped in and said that if you're going to redistribute the game for commercial reasons, Nintendo could sell Blockbuster the game at a very very very expensive rate above and beyond the rate presented to normal consumers. But if Blockbuster has the right to redistribute at no-cost (even if that model causes economic damage to the copyright holder), and I'm a consumer, if the rule of thumb that a consumer customer always has more rights than a corporate customer is valid (and that's always been the rule to-date at least), than I can also restribute my purchase, just on a smaller scale.
  
  
  
  In the end, it means that no one knows who's right in the software wars. Conventional wisdom tells me that mass distribution above the scale Blockbuster stores are capable of is not a protected consumer right, but the courts haven't defined it as piracy yet. Just because Microsoft and Nintendo Power say sharing games is wrong doesn't make it so.
  
  
  
  On a completely seperate side-note, Coke and Pepsi have nothing to do with intellectual property since recipes aren't protected content.
  

• What are you talking about? Fair use has zero to do with some kid downloading software that he didn't pay for and using it.
  

• I think that part of the problem with piracy is simply the word itself. Esp. with children, it invokes in some non-critical-thinking minds a romanticized notion of "leveling the playing field" or righting some sort of wrong. In this country, we've been inundated with this imagery in the form of movies whose main characters are swashbuckling pirates and "robin hoods" who (even though they're plainly STEALING) are sympathetic in their actions.
  
  
  
  Thus, its no surprise to me that a lot of people are sympathetic towards those that are doing something "heroic". This form of hero worship is obviously misguided and is simply an example of "social engineering" at its WORST.
  
  
  
  The real sad part of this romanticized theivery is that almost every single under-30 programmer I've known in the past 10 years has professed to abide by the same so-called value or moral. ("If I can't afford it, I'll simply get a copy from my friend!") When I ask them if they've ever written any software that they've had stolen while they were trying to get paid for it, they always say:
  
  
  
  "Well, NO! I've NEVER had anything stolen!" (usually in a state of denial...)
  
  
  
  to which I always respond:
  
  
  
  "How would you feel if another programmer had his hand in your pocket taking money out of your wallet?!?!?!"
  
  
  
  to which they always respond:
  
  
  
  "Well, that's JUST NOT RIGHT!"
  
  
  
  The hypocrisy of their viewpoint usually doesn't phase them ONE BIT!
  
  
  
  Unfortunately, I have had my intellectual property stolen several times in my career. I GUESS it's just a matter of perspective!
  
  
  
  Personally, I don't feel like being pick-pocketed by fellow programmers is the greatest feeling to have about one's own profession... It's starting to make us look worse than a bunch of bottom-feeding lawyers!
  
  
  
  Professionally, having interviewed hundreds of applicants for programming positions over 30 years, this is one key indicator of their level professionalism that affects my hiring recommendations. Most corporations and even small companies (who have much MORE to lose!) most definitely do NOT want programmers on staff who have a predilection towards STEALING, since they're the most likely to GIVE AWAY the company secrets, if not "samples" of products.
  

• I think we all agree software piracy is bad. We just don't agree with the definition of piracy.
  
  
  
  Before I fell in love with writing high-traffic data servers, I was a game developer for a small game shop. We were paycheck to paycheck (and in the end, I went 8 months without getting a penny in compensation). Through our updater usage statistics, we knew a huge portion of our users had grabbed our games off of Warez - so I do know the sting of pirated goods.
  
  
  
  On the same note, even if it meant a lost sale, I'm okay with the idea that a roommate could lend his game CD to his roommate. If I had been a PS2 developer instead of a PC games developer, we wouldn't be having this conversation, because its universally accepted that physical media can be lent, traded and resold without violating the rights of the creator. But somehow, because its "Giants: Citizen Kabuto" on a CD instead of a PS2-enabled DVD, the rules for fair use change? I don't think so.
  
  
  
  My morals as far as piracy are defined through consistency - Scanning a book and putting it on a torrent linking site is contributing to the piracy of that book, as it would be for music, movies, games, or any other kind of software or media. But exchanging physical copies with close friends is not piracy in my book, and for the time being at least, the legal system seems content to view it the same way.
  

• (I wasn't implying I was on the Giants team - I wish. I just picked that for an example because I replayed it last weekend. I worked for a small European game shop making Robin Hood games)
  

• Jeff should know that 40 to 50 percent of all software, even in the best countries, is pirated. The sorts of opinions he's seen in his comments simply reflect that. Yet he has the hide to call his commenter's naive!
  
  The reality of the situation is that a very large proportion of the community feel they're being taken for a ride by large intellectual property companies - charged exorbitant prices for product that's not really worth it especially given the draconian restrictions on it.
  
  In some cases it's easier to run pirated software than the real thing because of stupidity like copy protection and activation. And it is stupidity - you piss off real customers without reducing piracy.
  
  The IP industries need to a) respect their customers instead of treating them like thieves b) charge realistic prices for their products
  

• And that crap about letting the market decide which products to buy - it actually already is.
  
  The market has decided that software is 40-50% overpriced, given current non payment rates. It's time to recalibrate your price gun, Jeff.
  

• I disagree with Matt that high prices justify stealing...
  
  
  
  Contrary, MOST retail software has been greatly lowered in price over the last decade. E.g., Norton Utilities and PC Tools 8-10 years ago was MSRP $150. Now Norton Systemworks, which is really several bundled products, can be had for $40, and is only $20 for annual upgrades. Other software is simiarily priced. (Does anyone remember paying $250 for a rather limited capability C compiler for PC DOS? Or the $500 for the first few releases of the Windows SDK, which is now FREE? Versions of Unix clones ran $500-1500 10-15 years ago...) The majority of these now-low-priced products are "mature products" and have a far smaller yearly reinvestment into new releases. Thus, the ISVs smartly lowered their prices, since they've gotten a fair ROI many years ago.
  
  
  
  But, there are some companies that are "one trick ponies" and have invested an enormous amount of money in developing their single product. What do you propose those companies should do? Price their products at a price-point such that they NEVER have a positive ROI and become profitable?
  
  
  
  Granted, some companies are trying to milk the proverbial ROCK well beyond fair market pricing, esp. if they are a monopoly. Those greedy companies either wise up or lose customers...even IF they have a great product.
  
  
  
  In short, high prices are STILL NOT a moral or legal excuse for STEALING. Understandibly, developing countries deserve somewhat lower prices, but they should NOT be endorsing thievery by NOT enforcing world-wide copyright law.
  
  
  
  The thing I still don't understand is why so many programmers in developed countries (US and Europe) would rather STEAL from their fellow programmers...and try and justify it based upon what prices are like in some OTHER market (e.g., China). We in America and Europe are quite capable of paying for most retail software. We just CHOOSE to steal it instead!
  

• "What are you talking about? Fair use has zero to do with some kid downloading software that he didn't pay for and using it."
  
  True, but neither has theft. If you want this discussion to go somewhere, please use the proper terms or, ... well, don't start a discussion about it.
  
  
  
  I have great respect for you, Jeff, but the way you're handling this is beyond belief. The 'Steve' guy in this thread is right and you know he is, it's just that you want everyone to acknowledge that your definition of piracy and the connection with theft is the right way to deal with this. It's not.
  
  
  
  The discussion is very important, but how you're handling it, it's going nowhere.