Anti-piracy plans up against human nature

Two pieces of news caught my eye last week. Microsoft NZ is for the next couple of months to pay people $5000 for information leading to the successful prosecution of software pirates and XP's Windows Product Activation feature was reportedly cracked.

Two pieces of news caught my eye last week. Microsoft New Zealand is for the next couple of months to pay people $5000 for information leading to the successful prosecution of software pirates and “may” donate another $5000 to a designated charity. And XP’s Windows Product Activation feature was reportedly cracked within hours of the product going on sale.

WPA demands a user “activate” XP by contacting Microsoft and divulging their PC's basic configuration within 30 days or it stops working properly. (Don’t worry, volume-licensed enterprises are given CDs without WPA to make copies.) Microsoft has admitted product activation is aimed at novices’ “casual copying” of the operating system, in which a user buys one copy of Windows and installs it on multiple computers, rather than at deterring serious software pirates. Casual copying apparently contributed to about half of the estimated $US12 billion lost last year to the sale of counterfeit software.

But as others such as Brian Livingston (see Product deactivation) have argued, the notion of “fair use” – limited unauthorised reproduction in the public interest -- enshrined in much copyright law around the world effectively disappears when technology enables only one copy of an intellectual property to exist at any one time.

While New Zealand’s legal expression of fair use is less liberal than, say, that of the US, those campaigning most loudly for digital equivalence in all things copyright seem to play down the public interest line.

The idea has been floated of allowing “fair use” by building the ability to copy content for home use into the price of recording media; for example, some countries impose a levy on blank audio tapes to compensate the losses of the music industry from copying.

Heading in the opposite direction are the music industry giants, who are warming to the idea of putting copy protection on audio CDs to thwart what they claim is rampant pirating of their music. But you can be sure that any protection devised is likely to be cracked almost as quickly as searching for “SDMI Challenge” on Google. And stopping average users of software, music and other digital content from making personal copies is bound only to irritate them as they look enviously at their more technical brethren happily swapping disks.

The concept of one person’s fair use becoming another corporation’s piracy also inevitably affects estimates of illegal copying.

A press release on the Microsoft New Zealand site says that in 1996 “some 55%” of the software being used in New Zealand had been illegally copied. Microsoft marketing services manager Steve Jenkins is quoted saying "According to industry estimates, some 55% of the software being used in New Zealand is illegal -- either counterfeited or copied. This figure is far higher than it is for Australia and it reflects poorly on our business ethics and integrity.” Strange, given that the annual survey by research firm IPR for anti-piracy body BSA – of which Microsoft is an active member -- puts the figure in 1996 at 35%.

I think I know where the confusion arises: the estimated piracy figure for 1996 in the entire Asia-Pacific was 55%, though of course this average includes countries like China, copying like rice cakes at 96%. The release, about nailing an errant IBM user group in Tauranga, is still on the site, unamended.

Ah well, if nothing else, we should be a little bit proud – last year our estimated piracy rate was 28%; Australia’s in 1996 was 32%, according to IPR, and rose last year to 33%.

Jenkins’ “industry estimates”, by the way, are BSA ones (though the Software & Information Industry Association, or SIIA, is cited in the latest “Five Plus Five” campaign). You can understand that those in the industry most interested in trumpeting the anti-piracy message are those who have the most to lose. And that old-fashioned apathy coupled with diffuse ire about the price of software generally, rather than actual support for piracy, explains why people aren’t out on the streets. But when an organisation is apparently so loose with its “facts”, it isn’t cynical to question software piracy figures or suggest whether zero levels of piracy will ever be reached – or should be. It doesn’t help the BSA’s case when the face of the organisation is so relentlessly Microsoft’s. Sure, its members also include Adobe, Autodesk, Macromedia, Apple and Symantec, but I can’t recall the last time any of these had anything to say publicly on the subject. Novell and Lotus pulled out of BSA Asia in 1998, citing concerns about Microsoft's dominance of the anti-piracy body.

But when users can’t buy cheap, legitimate copies of slightly old software, and when global pricing (why parallel importing is less of an issue for Microsoft these days; Microsoft figures any severely discounted software is likely to be pirated) can only encourage piracy in places like China, and when anti-piracy measures like WPA are really aimed at Jo Blow, I can only see passive resistance ahead to Microsoft’s campaign.

Broatch is Computerworld’s deputy editor. Send email to Mark Broatch. Send letters for publication to Computerworld Letters.

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