I apologize in advance for the anger this essay reflects, but it is no longer possible for me to reserve my contempt for both sides of this unbelievable mess. A veritable host of ethically unthinking—perhaps even uncaring—persons eagerly violate copyright and other intellectual property laws today, in response to which which corporations endorse still stupider measures for dealing with them. The resulting situation is one in which legitimate consumers are punished constantly, and seemingly without any recourse, while thieving pirates grow only bolder and actually attempt to justify their violations with rhetoric of "file sharing" and utilitarian arguments focusing solely on their one-sided, bankrupt view of proper remuneration.
As a matter of fact, both sides of this preposterous situation are wholly indefensible. The purpose of this essay is to defend that contention and argue for some sort of Software Bill of Rights (SBoR) for consumers. If my reader disagrees with my analysis I have but a simple request: (1) explain to me at what point(s) I have erred factually, and/or (2) identify the flaws in my logic. Do not take the time to write me because you have a mere opinion to offer. Opinions are like armpits; i.e., everybody has them and they mostly stink. I'm not interested in opinions about copyright violations or the corporate response; I'm interested only in the salient facts and whatever valid conclusions may be drawn from them.
To begin with the information-yearns-to-be-free crowd, I've been receiving crank letters from these folks for nearly a decade. Why? Because in the craze surrounding the DOOM series of video games from Id Software, I wrote a piece of shareware that is still today considered one of the better level editors available. My original intent was only to produce a simple, yet powerful tool that would allow me to make my own maps for the DOOM-era games, but I eventually released the product as shareware at the urging of those close to me. Thus, WadAuthor (WA) was born.
The results have been generally positive. Many people find WA a good editor, while some find it a complete waste of time. And that's just fine with me, insofar as I never expected to please everybody. What I didn't expect, however, were the positively insulting souls who have taken me to task for having the unmitigated gall to (1) charge money for WA, and (2) retain ownership of WA's source code. Over the years I've received all kinds of email messages castigating me for charging money and for not making the source code to WA freely available to anyone who wants it. As they so often put it: information yearns to be free.
To be fair, I have also received quite thoughtful messages from folks who ask politely for me to provide the source code to the community at large. And, in all honesty, I'm sympathetic to their pleas, for I know I haven't updated WA over the years like it could have been were it an open source project. The main reason I haven't turned WA into such a project, however, is pretty simple: a large fraction of my company's proprietary source code is in WA, and that base of proprietary source code helps bring in revenue so my wife and I can do such trivial things as eating and paying our mortgage—you know, those silly little things.
At any rate, I don't write about my personal experience with WA to vent. Rather, I write about it because it evinces a certain false and harmful mindset, namely, that information yearns to be free. That's the rallying cry with which I've been assaulted over the years, and it's high time somebody else noticed the obvious: information, insofar as it is anything at all, clearly doesn't have yearnings. I realize that we're talking about a metaphor here, folks, but the power of rhetoric ought not be underestimated. It's largely because of the emphasis on rights-talk, euphemisms like the term "choice", etc. that the U.S. legal system now recognizes constitutional rights to privacy and abortion—and pretty much anything else a judge can make up out of thin air—within a constitution that says absolutely nothing about them.
Rather than sink into the political quagmire I've just opened, let me discuss the specific case that names this section: file sharing (FS). Those who advocate FS offer various justifications for it. Any time a survey appears that shows how CD sales are increasing despite music FS, for example, advocates immediately cite this as demonstrative of the bankruptcy of the corporate position. You practically can't swing a dead cat on the Internet without weekly striking an overly dramatic Slashdot thread along those very lines. But this sort of nonsense misses the point on two grounds: (1) mere revenue is not the only issue, and (2) file "sharing" isn't sharing at all, it's stealing plain and simple.
Let's take these one at a time. As I said above, mere corporate revenue is not the sole issue at stake; what is at stake is the far broader issue of intellectual property (IP) rights. Consider the plight of the musician. I'm a musician myself, so this is an issue close to my heart. The archetypal example involves the musician's labors to create something from his own imagination, a beautiful and worthwhile piece of art wrought of his own hands. When some punk illicitly downloads his song, using any one of the many peer-to-peer networking tools that facilitate piracy under the guise of FS, and then responds that the artist has no right to complain because his CDs seem to be selling better than before, this overlooks the abuse of property rights at stake here.
It is the right of the producer, not the consumer, to determine how, where, when, and for what price goods will be sold. On the other side of the coin, it is the right of the consumer to choose to buy or not buy as a result of the producer's choices. Granted, this is an oversimplification of a process that today involves music executives, lawyers, licensing fees, and God knows how many other distractions, but the bottom line remains the same: somebody owns the intellectual property that a piece of music involves. When you take someone else's property without their permission, without respecting their rights to its use, you violate the law and place yourself in clear ethical breach of your most basic duties to respect the property rights of others.
The most common justification offered for FS, that it actually benefits musical artists and their associated recording companies, is as transparently vapid as can be. Money isn't the only issue; what is at stake is a violation of the ownership rights of those involved. Would it justify rape, for example, if the rapist were to throw more money at his victim than any effort at prostitution might generate? Would it justify the theft of some prized possession if the burglar left a cash payment larger than the item's fair market value? The answers to such questions are obviously negative. The relevant fact is not how much money the victim receives; the relevant fact is that the victim has been violated.
What I find most interesting about this entire epidemic is the way that FS rhetoric itself is leveraged. It's amazing how important the selection of words can be. We were told as children, after all, that sharing is always a good thing, right? Sharing your toys with other children is part of being a good little boy or girl, right? FS has an immediately friendly tone and veneer because of such near-ubiquitous childhood training. But FS isn't sharing at all. It's a ridiculous misnomer for the obvious reason that nothing is being shared.
The whole reason sharing is a virtuous thing is because it involves the loaning of something to another, which necessarily involves the cost of that something to one's self for a time. It involves a temporary relinquishing of control and thus necessitates an omission of will in exercising rights of possession over the given item. To be clear, I'm not claiming that denial of self is always inherently virtuous, but I am claiming that there is positive moral value—both in the action itself and in its benefit for a child's character—when a child offers his toy to another child for a time. The child doing the offering is learning both to be kind to those who lack something he has and to engage in loving self-sacrifice to bring happiness to another. These lessons are terribly important for a child's moral development, and I personally find it disgusting that the same label is applied to the breaking of copyright law.
For that's precisely what it is, dear reader. FS has nothing to do with sharing. If it did, then it wouldn't involve any breaking of copyright law. It's not a violation of copyright law, for example, for me to loan a CD to a friend. That's genuine sharing because my friend gets to enjoy the music I have purchased while I temporarily forgo that benefit. What FS involves, however, is the deliberate duplication of copyright-protected material so that my friend can have his own copy without paying for it. There is no sharing whatsoever because there is no limitation of use. I have shared nothing with my friend if I give him a copy; rather, I have broken the law to give him what I have no right to give, violating the rights of those who created it in the process.
To draw these distinctions and recognize the difference between genuine sharing and breaking the law isn't difficult. But to be perfectly honest, many (if not most) persons these days are completely incapable of doing so. And the reason is simple: they've been virtually brainwashed from their youth in the most untenable sort of ethical relativism that enables them to see nothing but shades of gray. I'm not a big fan of the RIAA, to be clear, but I can hardly fault them for the various rounds of lawsuits that have earned them more contempt than money. Under the law, they are well within their rights to sue those who break the law and violate their intellectual property rights, especially because it's tolerably obvious that the laws are poorly enforced. Such civil actions are their only recourse, given that our legal system is doing little.
And yet many seem to consider themselves positively heroic for continuing to "share" files! They see themselves as a sort of modern Don Quixote, I suppose, jousting against windmills. Or in more contemporary language, they see themselves as the "little guy" battling the powerful evil of the faceless corporation. What they miss is the larger picture, for if the RIAA has no business protecting their legal rights of ownership then on what basis can the individual protest any usurpation of his own property? If one is to be consistent there is none, but of course the pro-FS crowd are rarely bothered either by inconsistency or ethics in my experience.
The corporate response to such widespread lawbreaking has proceeded on many fronts, though all boil down in their essentials to a quest for the impossible: a secure method for protecting digital content. Not surprisingly, given that they're chasing a literal impossibility, corporations have grown only more fascistic in their approaches to stem piracy. We have arrived today at the point whereat the mechanisms used for protection are screwing legitimate customers on an ongoing and consistent basis, and it is at that point that the actions of copyright holders infringe the most basic rights of consumers.
At rock bottom, capitalism assumes a certain level of honest agreement. I'm well aware of caveat emptor and other such let-the-buyer-beware sayings, but it is a matter of long established ethics and law that there are certain limits to what vendors can and cannot do in the course of conducting legitimate business. For example, a vendor cannot legally or ethically sell four ounces of sand as five pounds of sugar. The reason is simple: because four ounces of sand is not five pounds of sugar. Thus, to make such a sale is to engage in ethical and criminal fraud.
Free markets should not be and are not completely free. It is from the requirements for market systems themselves, however, along with the mandate to respect the inalienable rights of all human persons, that such market regulations flow. The dishonesty inherent in fraud is one example of abuse. It should come as no surprise to those familiar with the nature of market systems that market economies haven't worked properly in countries that do not respect their most basic tenets.
The particular sort of abuse most relevant to this essay, however, is that of depriving an individual of the use of property he has legitimately purchased. Increasingly complicated and downright byzantine methods for protecting digital content are being devised all the time, and with these methods come all sorts of problems, problems that I'm sad to say are largely dismissed or ignored by content producers. In the span of just a few years video games, to cite just one example, have gone from requiring a simple CD key in order to install and play them to multi-tiered approaches that encompass various screwy kinds of CD encoding, CD keys, remote server authentication, etc.
I have one piece of software, for example, that requires me to reactivate it every few months, and it requires the original CD to do this. So every few months I have to dig out that original CD just to continue using a product that I have legitimately purchased. I have similar bad experiences with my operating system (Microsoft Windows XP), my office suite (Microsoft Office), and all kinds of other products as well. Those of us who try to maintain a high standard of ethics and obey the law are saddled with plenty of hoops to jump through just to use the products we have legitimately purchased.
Worse, many of the protection mechanisms themselves are fallible in all sorts of undesirable ways. Some copy-protected music CDs cannot be played at all in certain players, just as plenty of copy-protected game CDs cannot be read properly in various CD and DVD drives. In some cases, the media involved are completely unusable because the protection systems themselves cause crashes or other behaviors that prevent the consumer from making any use of them at all. And, for the coup de grâce, most retailers will not accept the return of such items once they've been opened.
As a case study, consider the example provided by one of my favorite games, Raven Shield (RS). When RS shipped initially its CD key authentication system was so badly broken that it caused many users' computers to crash outright. Of those who were lucky enough to get the game to run at all, many were unable to play it online because of problems with the CD key authentication code. Though these issues were eventually addressed over the course of several months, the publisher/developer nevertheless later included code (in the v1.50 and v1.51 patches) to detect and prevent the use of legitimate software utilities like GameDrive, which I and others like me use to protect our precious game CDs from wear and tear. The latest patches have again rendered the game completely unplayable for a large number of users.
Think about it. I can't easily make a backup copy of my RS CD because of the CP code. So instead I buy a product that lets me get around that limitation and encode the CD to a file on my hard disk for use in a virtual CD drive. The vendor screws me in the first place by making it difficult (if not impossible) to copy the CD I have legitimately purchased and then screws me again by trying to detect such virtual drives and refuse to recognize them. And in the process, of course, they introduce more bugs into the code that prevent other legitimate users from playing the game at all because all this CP stuff depends on notoriously tricky and unreliable metrics.
I have a good friend, for example, who could not play the game at all with those patches. Why? Because the vendor didn't bother to test them with the OEM version of the game that came with his sound card. He had to wait for weeks until the vendor eventually released another patch to fix the problems introduced in the previous patches. Like me, he buys all the software that he uses because he is a principled man, interested in maintaining high ethical standards and obeying the law. The burden has been placed quite squarely on me, on him, and on every other computer user like us. In effect, the measures being used by companies to protect their IP merely encourage piracy all the more, for only a pirate can actually get his copy of the game up and running by using various hacks and cracks.
Even worse, some copy protection schemes literally violate the user's system in all kinds of unsavory ways. It wasn't so long ago that Intuit learned a hard lesson by angering a lot of customers with the addition of deeply flawed digital rights management (DRM). On too many machines, their DRM code ate memory like it was going out of style, took a big toll on system performance, refused permissions to users who upgraded their machines, prevented users from accessing their files altogether if they tried to remove it, and (if some reports I've read are true) even screwed up users' partition tables when writing authorization information to "unused" portions of the boot sector and other sensitive portions of the hard drive.
Such things are not uncommon. A few weeks ago I installed a working demo of a bundle available from Waves, makers of must-have audio plug-ins for the serious electronic musician. Without my permission, or even notifying me of what it was doing, the installer wrote information into the boot sector of my hard drive and perhaps into other areas reserved for the system as well. I don't know the extent of its violation; what I do know is that from that moment on Windows XP gave me errors about how the partition was bad and desperately needed to be deleted, re-created, and reformatted. None of the utilities I own that typically help me out were able to fix it. They all told me the same thing: the partition was bad and needed to be wiped. My only option, really, was to wipe the drive completely and reinstall my operating system and all my applications, which I had to do anyway when Windows XP screwed itself up shortly thereafter.
Now, maybe my reader isn't inclined to think this is such a big deal. Companies should be able to protect their IP rights after all, and I agree completely. I didn't have to download that evaluation package, any more than users had to buy software from Intuit. Buying software isn't like buying a physical item that can be examined in a store. There's never any way to know whether a piece of software is going to work without trying it, and one typically doesn't have any recourse with software when it doesn't work. Yet the protections offered to consumers of software are practically nonexistent compared to those enjoyed by consumers of other products.
And while I'm on the subject, where the hell do software developers get the idea that they have the right to screw up my system any way they please to protect their IP?! Consider a parallel example. What if a vacuum cleaner salesman came to my house and offered me a chance to try his product; does that mean he can then wander through my house as he will, breaking my plumbing, cutting the wires to my overhead lights, and urinating on my dog? Obviously, that kind of behavior is out of the question, so why do we accept it from software vendors? Why should they be able to screw up my system any old way they please just because I want to evaluate or purchase their products?
Which brings me to the typical corporate defense of such behavior: it's in the license agreement. When I contacted Waves, for example, their technical support representative actually defended their product's copy protection on the grounds that (1) they have a right to protect their IP, and (2) it's all covered in the software license. To his credit, he was apologetic about my situation and promised to look into it as the very first report of any such problem, but the mere fact that copy protection is mentioned in a software license makes it neither ethically valid nor legal—or at least it shouldn't.
For starters, why do software vendors get to do ridiculous things that other vendors cannot? Why can Microsoft insist, for example, that I do nothing to decompile or even tweak their products, yet Ford cannot insist that I never lift the hood of one of their cars, adjust the timing, etc.? From what I've seen, software vendors think they can do anything they damned well please, as long as it is mentioned in the software license. But where is the line drawn? Can some company write into their software license that they can confiscate your computer if you should merely install a competitor's product? Why not? They seem to think they can screw up my hard drive and then hide behind their software license, even though it provides none of the relevant technical details about how they're screwing it up.
The problem is clear: there presently is no line to be crossed (at least to the best of my knowledge). As things stand, software is treated as something completely different from any other product one buys. Hell, one doesn't even own the software one has purchased much of the time! Read a few software licenses in detail; you'll likely find that the company says explicitly that you don't own anything, that what you've purchased is simply the right to use their product for a while. For the love of God and all that's holy, what kind of garbage is that?! The company that made my television set can't get away with this crap, so why can software vendors? Ah yes, because it's in the license. I forgot.
Software licenses seem to me like the greatest tools ever invented for avoiding responsibility. Vendors can ship crappy products, refuse to accept returns once they've been opened, refuse to provide any patches, screw up users' systems with impunity, saddle users with all kinds of ridiculous restrictions, make users jump through all kinds of hoops just to install and "activate" their products, and then hide behind the license when anything goes wrong. They're liable for nothing. And what recourse do users have? It's exceedingly rare these days to find a company that doesn't treat it's users like criminals; as near as I can tell, users have only one option to avoid all the hassles and that's not to use any software.
Clearly, the time has come for a SBoR, or something like it. The situation has become thoroughly untenable. The world's unethical fools, who cannot be bothered to pay for something they want, have brought us to circumstances in which protection mechanisms are screwing legitimate customers badly. The corporate responses do absolutely nothing to prevent piracy while simultaneously encouraging it. I actually have video games I've legally purchased but cannot play unless I crack them, all because of their buggy CP code! Among the most basic principles which ought to be enforced are the following.
The situation can only continue to grow worse unless these most basic principles, and perhaps others, are enacted and enforced. There will always be pirates, no matter what protection mechanisms companies devise, and these persons must be punished for their crimes. But just as our justice system is structured to err on the side of the accused, preferring that one-hundred guilty men go free rather than falsely imprison one innocent man, so too the regulations of our markets must be such that one-hundred pirates go free rather than violate one legitimate user's rights. The sooner we can enact a SBoR and punish pirates more effectively, the better off we'll all be.
In the meantime, I've reached my limit in dealing with this foolishness: I'm going to do whatever I can to help people break the laws as necessary to make use of their legitimately purchased software/digital-media. I will happily provide copies of my CDs to those whose legitimately purchased media have been damaged, I will happily develop and provide cracks for games and other software to allow it to run when it would otherwise crash, and so forth. All of these things make me an outlaw, but I see little recourse when vendors saddle consumers with so much ridiculous garbage that it's literally impossible to make use of legitimately purchased products. When the system has become so debased that good is punished while evil is overlooked or even rewarded, the system has lost any claim to legitimacy and must itself be rejected.
07/21/2004