Don't throw buyers' rights overboard

Prepare to be boarded. The BSA is here firing broadsides left and right. But is its invective effective?

Avast! The Business Software Alliance (BSA) has swung from the rigging once more brandishing an incisive survey to cut down the pirate menace once and for all. As usual the BSA has tried to sharpen its invective with talk of pirates and IP crime. But such use of propaganda — misleading propaganda at that — only serves to dull the message and alienate software users including those who abide by the terms of their licences.

First let's take the term "piracy", which will appear in many headlines reporting on this survey. This used to be the preserve of people who committed truly egregious acts involving murder, rape and throwing bodies to the bream, but is now widely accepted as referring to those who use an unlicensed copy of a software product.

The BSA also refers to IP crime. Any lawyer will tell you that the context of software, IP crime typically refers to counterfeiting on a large scale. Using unlicensed software is not a crime (we can see the t-shirt already). It is not to be encouraged, and indeed should be actively discouraged, but it should not be criminalised, as the BSA would have it.

The danger that BSA, the Federation against Software Theft (FAST) and the whole (proprietary) software industry faces is one of alienating customers as they increasingly degrade them to the status of bilge rats and even try to criminalise them. If you're in any doubt as to how the IT manager community views the tactics of the BSA and FAST, check out the Talkback on our recent article reporting on FAST's vilification of them.

And criminalisation, after all, is the object. The European IPR Enforcement Directive contains many of the same ideas as Digital Millennium Copyright Act which, in the US, has seen researchers face criminal charges for pointing out security holes in digital rights management technology. It is the IPR Enforcement Directive which the BSA is using its survey to push. For a fuller explanation of the implications, see the report by Ross Anderson of the Cambridge Computing Lab. Briefly, the law will affect everything from software licence audits to RFID tagging and even printer ink cartridges.

Few would disagree that patent law, copyright law and perhaps even trademark law need constant revision as the environment in which they are expected to operate evolves. But those seeking to update IP-related laws must not lose sight of the fact that a significant body of opinion believes they convey privileges, not rights on the holder. The state grants a limited monopoly on an idea — patents — or expression of an idea — copyrights — in return for the holder of the monopoly granting rights to the citizens of the state. In the case of patents, the idea must be divulged; in the case of copyright, the notion of fair use gives people the right to use copyright material in various, reasonable ways. They can make copies, they can lend it to friends, and so on.

Those who seek to enforce protection of the rights holders — in this case the software companies — rarely give a second thought to the rights on the other side — here, the software buyers. In the US, the DMCA swung the balance so far as to nearly capsize the whole boat. We must not allow that to happen. And if the BSA wants to do more than inflict paper cuts then it must get its rhetoric ship-shape.