SCN: Piracy

Thu Mar 21 16:53:49 PST 2002

x-no-archive: yes

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(Lee Gomes, Wall Street Journal)---The U.S. software industry 
says it has a big problem, and it believes it has a solution: putting 
Robin Rothberg and some of his friends behind bars.  

Not everyone agrees.  

Mr. Rothberg, a 34-year-old Boston-area computer consultant, was 
for a year or two around 1997 a leader of "Pirates With Attitude" -- 
an online software-piracy group. The Pirates -- like hundreds or 
even thousands of other groups on the Web -- do for software 
what Napster did for music, making programs such as games and 
expensive financial software available for free. No money changes 
hands, and the groups are mostly hobbies for members.  

In 1997, after industry lobbying efforts, Congress made this sort of 
"recreational" piracy a criminal offense; previously, it was only a 
civil violation. Swapping more than $2,500 in software, regardless 
of the circumstances, became punishable by as much as three 
years in jail. Mr. Rothberg and 16 other Pirates With Attitude are 
the first big group of people to be faced with jail time under the law. 

They were arrested in 2000; most pleaded guilty last year, and will 
be sentenced next month by U.S. District Judge Matthew F. 
Kennelly in Chicago. Many are expected to be given probation, but 
the government seems to be gunning for Mr. Rothberg and a few 
others, who could be sent to jail for more than two years.  

The software industry describes the crackdowns as a much-
needed step to deal with a rampant and costly problem that grows 
worse every day. "We feel the threat of jail time provides a greater 
deterrent," said Mike Flynn, who heads up antipiracy efforts at the 
Software and Information Industry Association.  

But many people see the "criminalization" of recreational, or 
noncommercial, piracy as part of a disturbing trend. "The penalty is 
completely disproportionate to harm that is caused," said Marci A. 
Hamilton, a specialist in copyright law at the Benjamin N. Cardozo 
School of Law at Yeshiva University.  

Selling pirated programs has always been regarded as a serious 
criminal offense. But recreational piracy -- almost as old as the PC -
- was long treated as a civil matter, with those caught potentially 
receiving fines but not jail time. In convincing Congress to change 
the law, the industry said that even noncommercial piracy was 
expensive, pointing to 130,000 jobs and $1 billion in taxes it said 
was lost due to all forms of piracy.  

No one in the debate thinks that stealing software should be 
condoned. The bone of contention is whether the punishment fits 
the crime. The music industry's campaign against Napster has 
been conducted entirely through civil, as opposed to criminal, 
courts; critics say the software industry has the resources to do the 
same thing.  

With software-industry trade groups cheering on the arrests, the 
courts are likely to see more such cases. In December, federal 
agents seized hundreds of computers in another big bust, this one 
involving a group called "DrinkOrDie."  

The fact that people now face jail time for what had for years been 
a civil offense is another indication of the growing power of 
copyright owners -- not just software companies, but also the 
music and movie industries. These powerful lobbies are 
increasingly getting their way in Washington.  

In 1998, for example, Congress extended copyrights by 20 years 
after heavy lobbying by companies like Walt Disney Co., which 
was worried about losing copyrights on Mickey Mouse and other 
icons. On account of the 1998 Digital Millennium Copyright Act, a 
programmer was kept in jail without trial for three weeks last year 
simply for writing some decryption software. And the entertainment 
industry is now lobbying Congress for it to force PC makers to 
fundamentally redesign computers to make some kinds of digital 
copying physically impossible.  

"Things have tipped too far," said Miriam Nisbet, legislative 
counsel with the American Library Association, which often testifies 
on copyright issues. "We are very much for protecting authors, but 
some sort of balance is very important."  

The software industry justifies the tough new laws by citing the 
economic harm it says it suffers from piracy. Many of the industry's 
claims, though, don't appear to bear close scrutiny. The industry 
often says, for example, that well more than 100,000 jobs are lost 
every year due to piracy. It comes up with that number through 
extrapolation: that if the industry would have sold, say, 20% more 
software had it not been for piracy, then it would also have had 
20% more employees.  

Timothy F. Bresnahan, a Stanford University economist, dismissed 
the analysis as "goofy." "No industry executive would make that 
mistake," he said. The economic analysis about piracy was 
prepared by the International Planning and Research Corporation; 
the group, which works as a consultant to software groups such as 
the Business Software Alliance, said it stood by its analysis.  

The arrests tend to take up considerable federal resources: The 
DrinkOrDie bust came after a 14-month investigation involving 
multiple federal agencies. The busts are usually billed as major 
advances against computer crime. But some security experts, such 
as Lois Jacobson, chief executive of MIS Training Institute, a 
Framingham, Mass., security operation, wonder if law-enforcement 
resources wouldn't be more effectively used against potentially 
more serious problems, such as corporate computer break-ins.  

Also, the law requires judges deciding piracy cases to treat every 
copy of a pirated program as a lost sale, even though many people 
in the piracy world are students who couldn't afford to buy the 
programs they are downloading.  

The names of the software-piracy groups conjure images of 
anarchy-loving hackers. But the members typically turn out to be 
college students or middle-class professionals, often in the 
computer industry, with no other criminal records. All say they 
would have halted all of their trading had they been served with a 
civil warning.  

While not defending what they did, several Pirates facing 
sentencing say there were extenuating circumstances -- another 
reason they question if jail time is appropriate. And like many of 
those arrested, T. David Oliver of Illinois showed off racks of 
software he purchased legally at regular prices while a group 
member. Among the programs were copies of the Linux operating 
system -- which can be had for free, quite legally.  

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