Is stealing software different from stealing hardware?

Is stealing software different from stealing hardware?

Summary: In court it is. If a company stole the PCs it used to run its business (RAM raiding, shoplifting, breaking and entering or credit card fraud - take your pick), it would be theft pure and simple and you'd expect it to end up in a prison sentence.

TOPICS: Windows

In court it is. If a company stole the PCs it used to run its business (RAM raiding, shoplifting, breaking and entering or credit card fraud - take your pick), it would be theft pure and simple and you'd expect it to end up in a prison sentence. But if a company doesn't pay for the software that's so critical to its business that it would be out of business without it - and that's something the company directors can't avoid knowing about - most magistrates in the UK don't think that merits more than community service (and barring them from being the director of a company for ten years).

This summer Trading Standards in Swansea made their first ever anti-piracy raid on a business under the 1998 Copyright act that makes stealing software a crime. The raid happened after a whistleblower said the directors knew that their business software had been downloaded illegally and John Lovelock, the Chief Executive of FAST is pleased that the council department went after the business: “It is our intention to send a very loud and very clear message to businesses in the area – we will not tolerate intellectual property infringements and if we get evidence of this we will come after you.” But he's less pleased at the fact that even if they're convicted, the alleged thieves may get little more than a slap on the wrist that effectively condones software theft.

Counterfeit software isn't the big problem for the commercial software industry, according to Lovelock - although it's a tricky problem because while there are actual counterfeiters pumping out fake software (Microsoft has a CSI-style lab in Dublin to help track them down by matching discs to the burners that created them rather like matching bullets to the gun that fired them), he claims many of the counterfeit boxes of software are produced on the same lines as the legitimate stuff, using the same master and the same materials. "They get an order for 100,000 discs, and they just run off 120,000 or 150,000 instead," he told us. With the right holograms and fake product keys, even professional software buyers can have problems telling them apart. The easiest way to deal with that is to buy a product key and download the software, which is conveniently enough the way the market is going.

But the vast majority of 'stolen' software is licensing; people installing ten copies of an app they only have one licence for (or downloading an app that doesn't have copy protection that they don't have any licences for). Is that theft, and - at the risk of sounding old-fashioned - if not, why not?

Is it a protest against unpopular software companies? BP was pretty unpopular over the summer but no-one was filling up their car with petrol and driving off without paying in protest. Is it philosophy? That seems a bit of an insult to the open source companies who both sell software and give it away. Open source is about choice and access, not simply price; free as in speech, not free as in beer.

Downloading software - or music - doesn't 'feel' like a crime when shoplifting a CD or a box of software does; but I do think downloading music is different from downloading software. Home taping is skill in music, as we used to say in the 80s - making a mix tape of the charts off the radio or taping an album for a friend was more about sharing music than avoiding the cost of a CD. Hear a track by a new band that you come to love and you're likely to buy the whole album on ITunes. But does pirating a copy of Word make you more likely to pay for Excel next week?

It certainly helps that it's so common; it's like the journalist who commented on the allegations about the News of the World and phone hacking by saying "you don't think it's a crime if a ten year old schoolboy can do it". If it's easy and ubiquitous, can it really be wrong? Given that I saw a survey today saying 30% of people who sell things in online auctions would lie abut the goods, public opinion and the law aren't always a good match, and there's a chicken and egg question (how did enough people feel that it was OK to do it that enough of them did it?)

Is that you can't steal something intangible like bits? Leaving aside the box, CD and whatever vestigial manual is in the box, what you're actually taking is the effort it took to create the software. It may cost a pharmaceutical company tuppence to stamp out a pill on the production line, but they spent a few billion developing it in the first place and everyone recognises that - but somehow it feels different. Your identity isn't physical; identity thieves aren't taking your post or your credit card as such - they're taking your credit rating, your reputation, the likelihood that you can actually afford what they're buying I your name. That's not tangible either, but we feel it's a crime.

Is it - and I think this is the crux - that it feels like a victimless crime? That you didn't take the software away from someone else the way you'd be taking a stick of RAM or a mobile phone away from them? That the software companies can afford it? That they wouldn't have made any money because the thief would never have paid for it? That they should just be Google and give everything away and let ads pay for it? (Hint: that's not really working for many businesses other than Google. Facebook makes much of its revenue from virtual gifts - I wonder if you can steal a virtual rose? - and Twitter isn't exactly making huge profits yet.)

I was reminded while reading the 25th anniversary edition of Hackers that these are questions that have been around as long as there has been software. From the vendor's point of view the open source software model is less vulnerable to this double standard. If you're paying not for the software licence but for support then you have to pay when you need the support... If we switch from boxed software to downloads and they come through app stores where you have to have an account then stealing software gets more difficult (though certainly not impossible). The move to cloud and software-as-a-service and 'freemium' versions of apps also mean you have to pay before you can use the software (or provide ad revenue instead of paying up front) - and you have to keep on paying. Sure you can get your data out of Salesforce, but try getting your business model out, especially if you've written Apex code. But unless the PC of the future is going to be as locked down as the iPhone, Trading Standards officers are going to keep on raiding businesses for stealing something that we don't quite think of as stolen. Mary

Topic: Windows

Simon Bisson

About Simon Bisson

Simon Bisson is a freelance technology journalist. He specialises in architecture and enterprise IT. He ran one of the UK's first national ISPs and moved to writing around the time of the collapse of the first dotcom boom. He still writes code.

Mary Branscombe

About Mary Branscombe

Mary Branscombe is a freelance tech journalist. Mary has been a technology writer for nearly two decades, covering everything from early versions of Windows and Office to the first smartphones, the arrival of the web and most things inbetween.

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  • @Mary: thank you for a thought provoking post. Firstly, I really thought that a breach of copyright was most definitely _not_ a crime, and I can't find any reference to the Copyright Act 1998. Can you point me in the direction of where the UK legislation states that it is a crime? Secondly, copyright should be seen as a *mechanism* that protects the public good. In the digital age, the ease of copying information has shifted the goalposts so that now copyright law, particularly in the US, can be seen to protect the corporate good. Essentially I believe it's in need of a radical overhaul. Finally, advocates of Free Open Source Software should paradoxically welcome the enforcement of copyright, as large near-monopoly software companies (such as Microsoft and Adobe) *rely upon piracy to ensure their monopoly survives*. If people were forced to pay for the software they used, then vast numbers would switch to Free Software.
    Jake Rayson
  • Agree this is an interesting article, also make the point that copyright infringement is not theft in law or in fact. The infringers do not remove something thereby preventing the owner from using it.

    I would also like to make the point that FOSS relies on good copyright law as much as anything else does. The GPL in particular is a copyright based license.
  • For an individual, non-commercial computer user, breaching software copyright is not a criminal offence in the UK. A tactical mistake has been made by FAST and the software companies. By jumping up and down and trying to make out that it is more serious that it is, they have tainted their efforts as mere 'political correctness', something that got ushered in by New Labour and the EU.
  • @Jake - it's section 107, the 2007 powers granted under section 107A and considerations of possible offences under section 110 of the Copyright, Designs and Patents Act 1988 (
    107. Criminal liability for making or dealing with infringing articles, &c..
    107A. Enforcement by local weights and measures authority..
    110. Offence by body corporate: liability of officers..

    I can't vouch for the wikipedia entry, but it seems a reasonable summary;,_Designs_and_Patents_Act_1988#Criminal_offences

    Simon Bisson and Mary Branscombe
  • @Peter - well, I am talking about businesses using software here, but I'm interested in how and why you feel it's less important, or if you think it's important and badly approached?

    @Tezzer - is loss of use the only relevant loss? I think it's not and that's probably at the heart of this.
    Simon Bisson and Mary Branscombe
  • @Mary: Thanks for the info, will read up on a bit of statute!
    Jake Rayson