Bringing the Pirates to Bay; G. McGath

People who wouldn't think of sneaking mer chandise out of a store or burgling a house reg ularly obtain copies of computer programs which they haven't paid for. Why does this happen, and what is necessary to stop it? If we consider "software" in a broad sense, the problem goes beyond computer programs. The same issues and the same psychology arise in obtaining unpurchased copies of audio and video recordings. Software, in this more gen eral sense, means any kind of information stored in a form which can be readily copied. There are two kinds of software pirates: hob byists and business users. Hobbyists go largely after computer games and often obtain copies of virtually every game available. Business pirates acquire copies of high-priced business software. Sometimes they get all the free copies they want from an accomplice, and sometimes they buy one copy of a program and then copy it onto every computer they own.

The business pirates are undoubtedly the more harmful in terms of economic impact on soft ware producers. Software publishers often try to protect themselves by means of copy protection and "shrink-wrap" license agreements. Neither method has proved effective. Copy protection consists of modifying the program disk so that it physically cannot be copied. Such schemes can always be overcome, and legitimate users Gary McGath, of Hollis, New Hampshire, is a software consultant and freelance writer. are injured by being unable to make a back-up copy against the failure of the original disk, or a copy to the hard disk which stores all their programs. "Shrink-wrap" licenses are terms of use which are enclosed with the package, and which the publisher asserts the user has agreed to by opening the package. But these licenses have not been thoroughly tested by the courts, and in any event are useless against pirates who aren't caught. Very few pirates are caught.

The software pirate has a ready set of ex cuses for his actions: prices are too high; the company doesn't provide decent support; I'm only going to use it once in a while. But the distinguishing feature of software, which allows its theft to seem less bad than other kinds of theft, is that nothing is physically taken from the owner. There is no immediate, physical effect on the inventory or productive capacity of the creator of a piece of software if someone 500 miles away copies a disk and starts using it. There is, of course, a cumulative economic effect on the producer. The more people make unauthorized copies, the fewer copies tend to be sold, and the less money the producer re ceives for his effort and expense. But pirates often rationalize that they wouldn't have bought the program anyway, so they aren't cut ting into the producer's revenue. The attitude of software pirates is partly due to the widespread hostility to property rights in today's culture, but more specifically due to a misunderstanding of the nature of those··rights.

To the average person, property is primarily or exclusively material in nature. A piece of prop erty is a physical thing, such as a kettle, a car, or a plot of land. A computer program or a re corded performance is not a physical thing, hence it does not appear so clearly to be prop erty. But property is not a concept pertaining to matter alone. There is no purely physical fact, unrelated to the human mind, which corre sponds to ownership. Possession is not the same as ownership; if someone breaks into my car and drives away with it, I am still its owner even though the thief has seized possession. Principles of Ownership Ownership is a concept pertaining to a just mode of interaction among human beings, and it arises out of the fact that people live by creating things of value for their own use or for trade with others. Creation, in this sense, does not mean bringing matter into existence, but rather changing the form of matter in accor dance with an idea and a purpose. It is the idea, not the object, which a person actually brings into existence when he creates. By conceiving of a particular arrangement of matter and re ducing that concept to practice, a person creates something which he can use directly for his own purposes, or which he can offer to others in exchange for what he needs.

Most commonly, the actual cost of this pro cess is concentrated in the production of indi vidual items. Designing a good chair does take a certain amount of time, effort, and cost in materials, but the major part of the cost lies in the production of each chair. With software, the reverse is true; the cost of producing copies is negligible compared with the cost of devising the form of the product. In both cases, though, the only way a pro ducer can benefit from offering his product in trade is for others to respect his right to it and to obtain it only on his terms. A person may have other reasons for distributing software than ex pectation of payment, and there is in fact a large amount of legitimately free software available; but if people are going to make the production of software a full-time occupation, they must and should expect a return for their efforts from the people who benefit thereby. If 455 they do not receive a return, they will have to switch to a different sort of activity if they want to keep eating.

But what does this mean to the would-be user of software? The producer's problem is not his; should he concern himself with whether the programmers at Microsoft will be laid off or the owners of Podunk Programming will go out of business? With most kinds of theft, the likelihood of punishment provides a specific deterrent to taking other people's products without payment; the risk of such pen alties is negligible for software thieves. The likelihood that a given pirate's actions will break a software company, and thus injure the pirate, is also negligible. Risk of peer disapproval is potentially a more effective factor. However, with moral uncertainty being the watchword of the day, most people simply will look the other way when a person steals a program; pirates can even bring up their actions in normal conversa tion without much fear of disapproval. In some cases, employers even feel that they can intimidate employees into becoming their accomplices. An anonymous letter in M ac World magazine stated, "I recently had a nasty experience with my boss when I refused to make him a copy of Works [a program for the Macintosh computer], which I'd bought for my own use. (He later got a copy from another em ployee.)"

But there is a more basic deterrent to theft than the risk of getting caught or of suffering disapproval. A person can fake what he is to others, but not to himself. A person cannot escape the knowledge of whether his existence is sustained by his own efforts, or whether he is a dependent who relies on the productive ability of others and on their blindness to the fact that he is living off them. I am not speaking here of conscience-there are people who apparently have none-but of something even more fundamental, self-knowl edge. The person who steals, or who gains ad miration by lies, or who obtains his living through a do-nothing job, is inevitably aware that he is living not by his own efforts, but by someone else's, and that he must rely on other people's ignorance of his act in order to main tain this state of affairs; or if he avoids this 456 THE FREEMAN. NOVEMBER 1988 knowledge, he does so only by severely cur tailing his ability to recognize reality. Such a person cannot escape the sense of being out of .place in the world, since he maintains an antag onistic relationship toward those who benefit him.

Seeking Rationalization for Theft The evidence for this lies in the· fact that thieves, and software pirates in particular, always seek rationalizations for their actions. Muggers try to think of their victims as despi cable enemies; politicians imagine that they are serving the "greater good"; and software pirates say that the product is overpriced or that a true hacker would work solely for the pleasure of programming. Some may make peace with their excuses, bolstering their sense of self-sufficiency with a prop made out of ig norance; others will realize in the back of their minds that they have what they have only through the folly of others and will wonder why they always resent people's success. In either case, self-knowledge becomes a danger to them. Thieves who abandon the pretense of hon esty often fall back on the pretense of being smart: "It's stupid to buy something when you can just take it." They attempt to see them selves as attaining their goals by being more clever than the people who buy, and thus as existing by their own wits in the sense of avoiding costs and evading detection. But this is also a pretense; they know, unless they work at shutting down their minds, that their own "cleverness" works only because of the "stu pidity" of others who pay for what they buy and who don't notice or care about the thieves.

Alfred North Whitehead They are counting on the failure of the very people whose successful efforts they use. (This needs some clarification; a person who makes a living by understanding some phenom enon better than others is not dependent on their lack of knowledge in this way. A doctor who treats people for injuries they incurred through ignorance is benefiting from their be lated intelligence in seeking to solve their problem; he is not relying on their continuing failure to recognize reality. In contrast, a doctor who urged his patients to continue being reckless so that he could treat them again would be actively promoting stupidity, and would be entering an adversarial relationship with the people providing him with a living. Software pirates likewise depend on publishers' and honest users' continuing ignorance of or indif ference to their actions, and are threatened rather than benefited when people catch on to their mistakes.) The best defense against software piracy lies neither in physical hindrances to copying nor in stiffer penalties. The first have been shown to be ineffective in preventing theft and inconve nient to legitimate users. The second are use less if the pirates won't be caught anyway. The primary deterrent to theft in stores-at least in the more peaceful neighborhoods-isn't· the presence of guards and magnetic detectors, but the fact that most people have no desire to steal. The best way to stop piracy is to instill a similar frame of mind among software users.

This means breaking down the web of excuses by which pirates justify their actions, and leaving them to recognize what they are. Ulti mately, this is the most important defense against any violation of people's rights; without an honest majority, no amount of effort by the police will be effective. 0 IDEAS ON LIBERTY W ithout a society in which life and property are to some extent secure, existence can continue only at the lower levels-you cannot have a good life for those you love, nor can you devote your energies to life on a higher level.