Do you copy software illegally? - Watchdog - Column

Home Office Computing, Sept, 1994 by Linda Stern

OK, YOU CAN SKIP THIS ARTICLE IF YOU READ ALL THE fine print on all your software envelopes before you rip them open.

Still here? I thought so. So am I. As a professional writer, I have more than a passing knowledge of and interest in copyright law and the protection of creative rights. I knew enough to say "No" when a neighbor recently asked if I had "any cool Mac programs" I could pass on. But I will confess that I have never (until I began working on this article) read one of those my-eyes-glaze-over copyright notice licensing agreements all the way through.

I will further confess that I have, in the privacy of my own home, committed an act that was, under strict application of copyright law, a federal offense. I loaded the same program onto both my desktop computer and my PowerBook notebook.

And that, while not of primary--or even minimal--concern to many software publishers, still violates the copyright of any program that doesn't explicitly license me to do so.

When Do You Break the Law? The high cost of software, coupled with its ease of duplication, has thrown copyright law into the hands of people like me, who don't wholly understand it and violate it at the margin. At the other extreme, it has allowed dishonest profiteers who fully understand what they are doing to sell counterfeited programs at flea markets. At various points along the spectrum in between, people pass programs to their friends and neighbors, upload them onto local and national bulletin boards, pack them onto hard drives for resale, and load them onto corporate local area networks with dozens and even hundreds of users.

All are violations that, taken together, cost the software industry a whopping $7.4 billion worldwide in 1993, according to the Software Publishers Association (SPA) in Washington, D.C. Losses of that magnitude can threaten a creative industry and its customers: If a program's creator can't make money off a program because everybody copies it, that doesn't provide much incentive for creating new programs. On the other hand, even aggrieved software publishers recognize that much of the copyright violation that goes on stems from ignorance of the law or a general disregard for its seriousness. A first step seems to be educating software buyers about what they can and cannot do.

Even some otherwise legally savvy types might not be up on the subtleties of software use. SPA executive director Ken Wasch tells of a divorce settlement that came to his attention when the judge told the husband to keep the computer and software-stuffed hard drive and the wife the original disks. Another no-no.

What Is the Law? As incredibly complex as it might seem, copyright law can be summed up succinctly: You can install purchased software onto a computer and make backup archive copies. It is illegal to copy software for any other purpose (regardless of whether you actually use it), unless the publisher licenses you to do so. And publishers have different ideas about what they will and won't license you to do. That's why you're supposed to read that agreement on the envelope and in the manual.

For instance, Central Point Software, publisher of PC Tools, explicitly licenses you to "use one copy on a single computer." Software powerhouse Microsoft, perhaps thinking of people like me, lets program buyers load their software on both a desktop and a laptop computer, as long as they use one of them primarily--80 percent of the time--and the other one only infrequently.

These licenses may best be thought of as the exceptions to total copyright protection. They grant you rights that otherwise would not be allowed under copyright law. Even if there was no license, you could still be held accountable for making illegal copies under copyright law. But another kind of licensing restriction is not so clearly enforceable. Those are termed additional noncopyright purported restrictions.

Nolo Press, for example, tells its WillMaker licensees that they are not permitted to use to program to prepare wills for people not in their immediate family (unless they've obtained a commercial license from Nolo). Other publishers forbid you to decompile or reverse engineer their programs, in an effort to prevent knockoffs. The problem with these kinds of restrictions is that they are not copyright issues and the licenses that carry them may or may not be considered binding contracts. Some courts have upheld the concept of passive contract acceptance, where simply using the software means you accept the license as a binding contract. Others have not.

The Industry Fights Back Practically speaking, it isn't the dual-computer home-based user that raises the publishers' ire. "That's something we aren't angry about and don't pursue," said Bill Leethan, chief financial officer of Berkeley Systems, developers of the very popular (and oftcopied) screensaver program After Dark. "What gets me angry is people profiting on our stuff--selling it at flea markets or copying it into bundles of their own products."