Intellectual Property Issues - Essay Example

? Intellectual Property Issues - Software Piracy: Why is it widespread, what are the ethically flawed justifications people use for this? Date Abstract This paper covers the practice of software piracy focusing on illegal downloads and their ethical implications. This paper will attempt to piece together pertinent information and formulate an ethical analysis of the practice of software piracy. The information gathered will be representative of the many sides to the argument. Table of Contents Abstract 2 Table of Contents 0 Introduction 0 Software Piracy & Intellectual Property 1 File Sharing & Digital Culture 2 Software Piracy & Global Economic Inequality 4 Conclusion 5 References 6 Introduction Software piracy involves the distribution and use of unlicensed copies of proprietary programming code and applications that are protected under international copyright and intellectual property law. (Besen and Raskind, 1991) Software piracy may involve the distribution of unlicensed copies of proprietary software on floppy disk, CDs, hard drives, or file sharing programs and websites on the internet. Many of the instances of software piracy involve computer hacking activities where these programs are altered so that users can install and operate them on private computers without registered serial numbers, licenses, or keys. The advantage for the software pirates and their community of users is that they can enjoy all of the powerful functionality of advanced proprietary software applications without having to purchase them. For students learning these programs, the poor, unemployed, or citizens of other countries who may enjoy a minimal standard of living, software piracy may be the only way to afford or have access to these programs. Due to these issues and others revolving around software patents, there is an increasing movement to develop open source software platforms with all of the functionality of proprietary applications but freely distributed to download. The question of software piracy relates fundamentally to digital culture and hacking, making the issue a vital part of understanding this subculture internationally. Software Piracy & Intellectual Property File sharing and software piracy actually predated the internet and has been around nearly as long as people have been programming computers. Software is licensed under standard intellectual property, copyright, and business law, usually including a user agreement with the terms and conditions of use stipulated in advance that the customer must accept. Intellectual property law turns source code into licensed property that can be protected from theft under a common law basis. (Besen and Raskind, 1991) Therefore, the legal argument established under the current combination of copyright and intellectual property laws creates the crime of software piracy for anyone attempting to circumvent licensed use by distributing cracked versions of the software that can be installed on a computer without paying. The legal argument includes the fact that the software pirate is denying the payment due for the licensed software to the company that developed it, thus weakening its business plan and sustainability. The loss of ROI therefore constitutes a criminal act, similar to copying a videotape and selling it or airing a movie without paying royalties, etc. (Besen and Raskind, 1991) The software pirates themselves refute this by pointing out that they are not necessarily costing the developing companies any income, because people who can afford it or who need licensed copies in enterprise or academia will purchase it anyway. They state rather that software piracy empowers the poor people who would otherwise be without tools and at a competitive disadvantage due to their socio-economic status. This “Robin Hood” argument can be persuasive as well, because the cost to make a digital copy of a software title is essentially zero. (Boyle, 2004) File Sharing & Digital Culture Digital culture views hackers as heroes and the “Robin Hood” mentality is common in computer hacking events, where large corporations are attacked by digital bandits operating anonymously or under flamboyant pseudonyms. (Tyler, 1997) The same expertise in computer programming that fuels hacking attempts is undoubtedly related to software piracy, because companies invest so much time and effort to protect their proprietary software titles in the marketplace. Because of this, when a large company such as Microsoft, Adobe, Steinberg, Electronic Arts, or any of the game and desktop application programmers release a new software title, there is a rush within the elite hacker community to crack it and distribute the free, pirated version online. (Tyler, 1997) Much of this distribution takes place through websites and torrent sharing software applications such as the Pirate Bay, Gnutella, Limewire, BitTorrent, and other applications that have evolved since the time of Napster. MP3 sharing is closely related to software piracy through intellectual property law and copyright, but music and other forms of media such as books and films rarely risk the violation of patents as software releases do. (Boyle, 2004) In this example, other software developers stealing code from a related company and publishing it under their own brand or releasing it as a part of their own software program could also be considered a form of software piracy, but this is generally distinct from file sharing and may indeed be more serious. Digital culture operates under a belief that information should be free, and this relates to transparency as well as software piracy, organized under a different view of a just social order. In this interpretation, the loss of monetary gain to software development companies is a minimal element compared to the good that can result from the empowering of millions of people with software that they otherwise could not afford to use. Considering that there may be no functional equivalent in open source software for many of the proprietary titles that are pirated, to leave these titles free to be used only by a very limited segment in society creates an oligarchic system where knowledge is restricted to a very few, and the determinant is wealth. While this may be the fundamental ordering system of capitalism, software piracy challenges it through the “Robin Hood” strategy by making proprietary software available for use by private individuals who could not otherwise afford it. This represents a leveling of the playing field so that all may participate more equally. From this interpretation, it is not surprising that the elite element will want to preserve its dominance and status through the restriction of ownership and use of software. However, in the digital world, it costs nothing to make a digital copy, and thus file sharing should emphasize the communitarian and giving aspects of “sharing”, which childish as it may be in contrast to generating huge profits for a publicly listed company, may also be accomplishing aspects of the good by liberating this technology from private monopolistic usage. The balance for this is the question of how much harm is done, as in how many sales are concretely lost through software piracy vs. how many people who use pirated software would otherwise not buy it at cost and use an open source version instead. Software Piracy & Global Economic Inequality Where the “Robin Hood” ideology of the computer hackers, software pirates, and file sharing networks also lead the traditional view in promoting social change is in bridging the “digital divide” that separates the rich and poor globally from accessing technology and software equally. For example, the prevalence of pirated copies of Windows in India and China is likely due to the fundamental economics of the countries where workers may earn 20 to 30 times per annum less than American or Western European counterparts, even for similar jobs. (Marron & Steel, 2000) Thus, $70 for an authentic copy of Windows in India or China could be as much of 50% of a month’s wages, in comparison to America where the cost could be seen as irrelevant to the upper-class consumer. (Husted, 2000) The fact that a single cracked copy of a software title can itself be copied and distributed, for free, innumerable times without degradation or loss of functionality shows the wide range of usage pirate versions of software can take in emerging markets where there is no possibility to afford the private licenses. For those arguing strictly for American or Western trade interests, the use of pirated software in emerging markets represents not only a loss of competitive advantage, but also the theft of income for the companies who operate in those countries. (Marron & Steel, 2000) Yet, this example only furthers the rationale for the use of pirated software in poor regions of emerging markets, because the software companies themselves may not even be offering the title in the region in the indigenous language of the users. Thus, by empowering the poor in emerging markets by giving them access to learning, functionality, and business tools, the development of society and the social good is promoted, even if a nominal loss may accrue hypothetically in the balance books of the developers. These potential losses cannot be measured objectively as to potential sales lost through pirated software titles, because the same user may very well choose an open source, free alternative to the proprietary software if a pirated version is not available. The best example for this is Linux, which would undoubtedly be used widely in the developing world if pirated copies of Windows were not widely available for distribution on hardware. Conclusion The argument against software piracy and file sharing represent the application of outdated models of intellectual property law and copyright to the new digital medium. The costs of file sharing are represented as potential losses to the developing company, but these totals cannot be accepted as estimated, because many users would choose free, open source software over the proprietary version if the pirated copies are not available. Software piracy itself cannot be stopped despite the investment of developing companies because of the knowledge base existing in the hacker community and the ability to pool resources to crack software titles. The hacker ethos is based in the “Robin Hood” strategy of robbing from the rich to give to the poor, and despite its questionable moral basis and illegality, innumerable social good can result from empowering the poor and avoiding an oligarchic distribution of resources in society. If the ultimate good is knowledge, truth, learning, and application of these concepts towards the social welfare of all equally, than software piracy has a leveling function that allows for its defense in a modern system of global capitalism based on economic inequality. The future may see significant reform in copyright, intellectual property, and patent laws to update existing agreements to the new nature of digital media. References Besen, Stanley M. and Raskind, Leo J. (1991). An Introduction to the Law and Economics of Intellectual Property. The Journal of Economic Perspectives, Vol. 5, No. 1 (Winter, 1991), pp. 3-27. Web. 28 Sept. 2011. Boyle, James (2004). A Manifesto on Wipo and the Future of Intellectual Property. Duke Law & Technology Review, 2004 Duke L. & Tech. Rev. 9. Web. 28 Sept. 2011. Husted, Bryan W. (2000). The Impact of National Culture on Software Piracy. JOURNAL OF BUSINESS ETHICS, Volume 26, Number 3, 197-211, DOI: 10.1023/A:1006250203828. Web. 28 Sept. 2011. Marron, DB & Steel, DG (2000). Which countries protect intellectual property? The case of software piracy. Economic Inquiry, Volume 38, Issue 2, pages 159–174, April 2000. Web. 28 Sept. 2011. Tyler, Tom R. (1997). Compliance with the Intellectual Property Laws: A Psychological Perspective. N.Y.U. J. Int'l L. & Pol. 219 (1996-1997). Web. 28 Sept. 2011. Read More