Giving, sharing, copying and piracy

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I am a free software advocate and, to a much smaller extent, a free software producer. As such, copyrights are important to me—I rely on them to stop people proprietarising free software and protecting their inherent freedoms.

I used to write a bit of music too. However, piracy was not a problem for me. The difficulty I had was getting people to listen to my music, not stopping them from copying it. A new Pink Floyd I was not.

However, I understand that there are musicians, and producers of it, who create more popular music; and that they choose to charge for it. That is their right, and I have no problem with that. They also wish to use copy protection technology to prevent improper copying. I have no objection to that either.

In fact, DRM and free software are by no means mutually exclusive in either technology or philosophy. Though a couple of incidents have recently happened for me to think about it further...

There are those who insist that copyrighting their work entitles them to some form of monetary payment when the work is copied. There are people who will attempt to copy their work without making that payment, and will do so with full knowledge of what they are doing and the intent to deprive the copyright owner of that payment. This is theft in all senses of the word. Upon this basis, I see no problem in putting DRM technology in place as I see no problem placing locks on my front door to prevent burglary. However, I do have a problem if this technology is being used in an improper way, if it is being used to control. There’s a big difference between using technology to lock burglars OUT of your house, and using the same technology to lock you IN and thereby forcing you down a particular path.

Back to the two incidents that inspired this entry. The first was that a school friend of my daughter’s came for a “""sleep-over"“" at our house last night, and as an offering she bought over a PS2 soccer game to lend to us for a month or so. This will provide hours of entertainment for both of my children during the long upcoming winter nights and at no cost to myself. We will reciprocate by lending our own games out to her.

It struck me though that if these were, for example, Microsoft games, we couldn’t do this exchange legally. Their license prohibits it. Once installed on a computer that’s IT. If we stop using that program we cannot transfer it on. This has been the case for so long that I’ve become completely used to it and usually don’t give it a second thought, but when I do, I can’t help feeling it is a beginning of the lock-IN of the good guys, not the lock-OUT of the bad.

The second is an incident that is hitting the computer press rounds at the moment. Sony placed a copy-protection mechanism on some of their music CDs which installed a rootkit on MS-Windows machines and compromised the security of these computers. Not only that, but it appears that Sony themselves may have pirated some of the software that they incorporated into it (Groklaw is covering this too). This is an amazing piece of tom-foolery from such a corporation.

There is an enormous misconception floating around that suggests free software is incompatable with DRM. I believe the opposite is true—it is essential to it. Open encryption technology standards are responsible for securing millions of dollars worth of credit card transactions each day, a significantly large proportion of those use free software. It has been proven that obscure proprietary routines don’t enhance encryption, they in fact decrease it’s effectiveness by making it more difficult to identify weaknesses before the bad guys do.

An important thing to remember about software only DRM technology is that it doesn’t work. It may prevent a computer-illiterate teenager from making a copy of the CD the first time they try, but even they could find the appropriate work-around in one of the ever increasing corners of the net to achieve their goal. Also it does nothing to prevent the professionals—the people in the basements in the far east—who make significant money from piracy. Any effective DRM would require a chip of some sort that just cannot be duplicated cheaply enough to make it worthwhile. With that in mind there’s no reason why free software is just as effective as its proprietary cousin in making use of it.

It’s worth noting there’s nothing any manufacturer can do to stop someone playing a CD and then using a microphone to re-record it. In fact, they need not be that primitive. All they need to do is to take the input to the speakers, or the amp, and re-digitalize it. Also, people are usually happy to pay the right price for the right product. By far the best antidote to IP theft is to follow a good customer policy and not overcharge for products. In fact, employing restrictive technology that annoys your customers is likely to encourage piracy, not prevent it.

You may ask: “""Doesn’t this make DRM totally redundant in this area anyway?"“". Many think so. However, it does make it more difficult for organised crime to make exact duplicates. There would be the same incentives to purchase genuine CDs and DVDs as there is for the old video tapes.

But going back to the Sony incident: it’s difficult to believe that their product would have been any less secure if they used free software. Remember, although they’d need to provide the source code for it, they’d have been under no obligation to provide the keys they’d incorporated into it. So, in effect, it would have been as secure as any proprietary alternative (which is not really secure anyway without DRM hardware). Also—and more to the point—they couldn’t have been accused of compromising their customers’ computers.

As for the allegation that they pirated software to build their anti-pirate routines—I’ll leave comments about that to others far more "expressive" than I.



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Comment from: A Reader [Visitor]

2005-11-16 @ 08:20
To charactarise copying as "theft" is a gross over-simplification. The term, along with "piracy" is best avoided because it's too often used by the music, movie and computer industries as a form of propaganda to push people into accepting draconion controls. For example, DVDs that neatly carve up the world into regions - this is not copy protection.

Any harm done by copying is a far more complicated issue than stealing; also, even if it's wrong to copy in some circumstances, that doesn't mean it's stealing. There are plenty of things that you shouldn't do, which possibly deprive someone else of an opportunity or cause financial loss, but we don't call it stealing.

If you want to punt inaccurate terms around, you could say the music industry are guilty of simple theft when they engage in price fixing, or when they put DRM on your computer (it costs money for companies to remove it). But then, if you call everything theft, we won't know what you're talking about.

The corporates that represent Mickey Mouse and Madonna have a monopoly on icons of popular culture. You can't just decide to buy some other competing artist if you've been exposed to, and liked, the latest Madonna hit. Nor would many parents insist that their kids avoid Mickey Mouse on the grounds that Disney have over-extended their reach on copyright.

Copyright holders have an obligation not to abuse their monopoly position, and this is far more important than stopping a few freeloaders, who have a finite pool of money to spend on DVDs, games, music etc. and therefore won't spend any more on these items just because of some copyinig restrictions.

Bottom line, there's always ways to make money so all this greed and calling copying "theft" is just unnecessary.

Comment from: A Reader [Visitor]

2005-11-16 @ 08:27
Sorry, forgot to include in the above:

Spammers - why don't we just call them thieves too!

Finally (really!) if anyone is in doubt about whether copying is as bad as theft, just look at social attitudes.

How many adults can you get to admit to stealing something? Maybe a few embarrassed confessions about childhood, but unless you talk to criminals you're not going to find many adults who steal things.

Now go asking about copying. Sure, some people may be uncomfortable with it, but most people 'off the record' will happily admit to copying CDs, or having done so in the recent past.

Let's not try to change society's attitudes just to suit a few greedy monopolists.

Comment from: Rui Miguel Silva Seabra [Visitor]

2005-11-16 @ 08:35
Absurd basis leads to absurd conclusions.

The moment you assume copyright is some kind of property, you immediately start from false assumptions. The pitfall of that absurd logic is conclusions like: DRM is good in principle, unauthorized copying is theft, etc...

DRM is mutually exclusive with Free Software. If there's Free Software that can play the content 1 time only, it can be trivially changed to DUMP the content and then replayed any number of times.

The only sollution is to legally remove the freedom of modification by law, so that people couldn't do that. If people can't do that, than it's no longer Free Software.

Your conclusions are absurd, therefore, and prove that you have much confusion to clear up.

For instance, a technical conclusion: encryption technologies... Yes, it's encrypted, but no Free Software tool that leads with encryption allows you to only decrypt once, or on mondays, or phones home to tell some corporate lawyer what music you're playing.

Comment from: Jim O'Flaherty [Visitor]

2005-11-16 @ 17:16
Edward, Copying a piece of copyrighted material, regardless of source and/or destination forms of the material, is NEVER theft. It can only be copyright infringement. Lawmakers were very careful to distinguish between physical property (which by it's nature is scarce) and idea property (which by it's nature is not scarce). Theft implies the "owner" lost some value not regained. Infringement implies the "owner" did not receive his government granted monopoly rent. While subtle, forming this distinction is critical when discussing the values and choices around "idea ownership and control" - which copyright attempts to grant in a limited fashion.

Comment from: Rufus Polson [Visitor]

2005-11-17 @ 16:54
It seems to me some of this nonsense is itself illegal. It's all very fine to start from the position that copying by definition is an infringement of copyright, except that it's utterly false. My understanding is that in fact buyers of copyrighted material have certain rights of their own, certainly in the US but in many other countries as well.
So for instance, if I buy a book I have the right to resell that same book, and certainly to lend it to a friend. The *book* is mine; copyright just stops me from publishing it. So any Microsoft EULA which purports to say I can't do that with *my* computer game which I bought is illegal, and any copy-protection scheme which stops me from selling it, lending it, or for that matter loading it onto my new computer after I got rid of the previous one, is on very questionable legal ground.
Furthermore, it's been established in court that people have the right to make copies of music they buy for their personal use. If I bought a CD, I have the right to make a party tape using some of the songs on it, or rip it to MP3 and stuff its contents on my ipod or whatever. Again, DRM infringes on my rights to do that kind of stuff and is itself legally questionable, although in the US the odious Digital Millennium Copyright Act lends this sort of thing cover.

We have a tendency to think that the rich and powerful become respectable and their actions must be assumed to be legal just because of the fact of their wealth. But many of them aren't respectable, and corporate charters mean they have to pursue profits at the expense of any and all other values, potentially including legality. Maybe we should be enforcing the legality of corporate behaviour before we worry too much about the activities of thousands of people who don't so far seem to have put much of a bite into their profits.

Comment from: Karl Fogel [Visitor] ·

2005-11-18 @ 21:51
Some of the assumptions in this article, about what copyright is for and exactly what "rights" people should have to restrict access to works of the mind, deserve closer scrutiny. The publishing industry has worked very hard for three hundred years to convince everyone that some people should have a "right" to restrict the spread of copyable works � that to support these rights is "reasonable", and that to object to them is automatically "unreasonable".

Not all of us agree with those assumptions. The web site above,, is a start at explaining why.

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Edward Macnaghten's picture


Edward Macnaghten has been a professional programmer, analyst and consultant for in excess of 20 years. His experiences include manufacturing commercially based software for a number of industries in a variety of different technical environments in Europe, Asia and the USA. He is currently running an IT consultancy specialising in free software solutions based in Cambridge UK. He also maintains his own web site.