Does software piracy disclose a ‘generation divide’, and is this a problem?

A recent ITBusiness article by Warren Lee commented on the perception that younger people tend to place less value on “intellectual property” than older people, as well as suggesting that corporations often think they can treat ethics like a buffet where they can pick-and-choose those issues which benefit them.

I’m not convinced there is anything new as far as ethics is concerned, and that those who most claim moral outrage at copyright infringement are sometimes a key source of the problem. The claims of harm from software piracy may itself be part of this questionable corporate ethics.


Back in time

I often read how younger people perceive copyright in various online forums, including the Fair Copyright for Canada facebook groups.

I often see asked that if nobody is making money, and no physical copies are being removed from anyone, how is anyone being hurt? Many people believe that copyright only applies to commercial activities, and that it isn’t unlawful to take something that they legally purchased and then share unauthorized copies for free with their friends.

This is familiar to me as this is what I also believed 25 years ago when I was in high-school. I went further and believed that complex industrial laws like copyright only applied to industrial activities, and definitely didn’t apply to anyone under the age of 18.

I will admit that the type of copyright infringing activities I was capable of 25 years ago is minor than what is possible today. While we had BBS systems running on our 300baud modems (1200bps modems if we were rich ;-), there was no Internet accessible to any of us mere mortals, and there was no P2P-style distribution tools. While the scale of the infringement has changed, I am not convinced that there has been any change in the beliefs or attitudes of youth.

I am about to hit my 40′th birthday at the end of March and am no longer considered a youth. My understanding and beliefs around copyright are far more nuanced than they were 25 or even 7 years ago. I still do not hold the same attitude as those my age or older who seem to want to blame young people for everything that goes wrong.

I think to find the source of the problem we need to look at who is doing the education.

Backward in education

When I was in high-school there was very little material on copyright available to me, and even less on software copyright. What I did read about software copyright as a personal project from my law class suggested that in many countries it was uncertain whether software was copyrightable at all.

The Canadian government believed there was enough uncertainty that in 1987 they passed a Bill C-60 (Yes, the 1987 version under Brian Mulroney and not the 2005 version under Paul Martin) which added “computer program” to the Canadian Copyright act. This was brand new law, and even if copyright were part of the curriculum it would be understandable that this issue would not have been included until many years later.

In September 1987 I started Computer Science at Carleton in Ottawa, and copyright law wasn’t part of anything required of computer science students.

The article by Warren Lee he references Michael Hilliard, corporate counsel for Microsoft Canada, suggesting that Microsoft has a three-pronged approach to combating “software piracy”: enforcement, engineering improvements to the product and education.

If you are curious how well they are doing on education, you can read an article in last week’s Hill Times by Michael Eisen who is chief legal officer, also at Microsoft Canada in Toronto. In this article he included the following interesting account.

“Imagine you’re an aspiring author who decides to self-publish on the internet in hopes of supporting yourself and catching the eye of a publishing house. Now imagine someone hacks into your website and accesses your work and begins using the ideas expressed in your work for their own commercial benefit. You should be protected, right? In Canada, you are not.”

The most depressing aspect of his story isn’t the alleged state of Canadian law, but the fact that a lawyer for Microsoft Canada is authoring fiction and suggesting it is fact. Canadian law would fully protect this aspiring author in many ways: our very strong and modern Copyright law, as well as other laws protecting against people breaking into websites.

Even worse is the educational effect of these articles. Many people will read fiction such as this and believe that there is nothing illegal about these activities in Canada, and will then see absolutely nothing wrong with doing them. This will induce people to infringe copyright more than they might otherwise.

Maybe he was complaining that no copyright law anywhere on the planet protects “ideas”, only expressions of those ideas? Most people reading his article won’t notice or realize there is a difference.

We can not, however, blame misinformation from Microsoft alone.

Prior to tabling Bill C-60 in June 2005, then Heritage Minister Liza Frulla was speaking about the upcoming copyright act in April 2005 at at the Junos, stating that “We’ll also be addressing the peer-to-peer issue,” “It will give the tools to companies and authors to sue.”

The problem with this statement is that companies and authors already had the tools to sue under the existing Canadian copyright act. Recently the head of the Canadian Recording Industry Association has suggests he is upset for not getting enough credit for not suing people. Clearly he understands that they have the tools to sue, and have simply chosen on their own not to sue unauthorized music filesharing in Canada the way the same set of major labels he represents have done in the USA.

Average Canadians hearing about the 2004/2005 “BMG vs Doe” court case falsely believe that the fact that the labels lost this case meant that unauthorized P2P filesharing was lawful in Canada. The labels lost this case because they never bothered to collect any evidence (IE: download and listen to any songs to know the contents of the files), not because of any flaw in Canadian law.

I know from receiving clarification from lawyers, ministerial and other parliamentary staff, and reading the current Canadian copyright act, that these activities are infringing in Canada when unauthorized. Most Canadians will have heard the Minister of Canadian Heritage, the woman most responsible for Canadian Copyright law, claiming that changes are needed to allow lawsuits for unauthorized P2P filesharing. They will assume that the Minister must have known what she is talking about, and that these activities are perfectly legal in Canada until the new law is passed.

For this mistaken believe I suggest the blame should sit with the government and various industry associations, not with music fans no matter how old they are. Rather than major changes to the law, we need major changes to the information being spread by government and the industry: from the fiction they are currently spreading, to something that is non-fiction.

Modern creative experiences

There is an additional contributing factor to this issue. In the past the tools required to author, edit and distribute creativity was expensive, and thus it was primarily an industrial activity. Most people were passive audiences. This is radically changing, with the technology to author, edit and distribute creativity being cheap enough that youth and everyone else is able to participate in culture in a way that was previously impossible.

With this new found ability to participate comes a very different idea of who an author is, and what the shape of the law should be to protect creativity and creators. Younger people are far more likely to be active in “do it yourself” creativity (so-called “user generated content” as it has been called by the incumbent media), including things such as Peer Production and Peer Distribution.

These cultural participants will increasingly question the claims of lost revenue from various incumbent industry associations. They know that the costs of production and distribution have dropped considerably, prices to audiences have not dropped much, and yet what creators receive hasn’t gone up accordingly. This will cause them to legitimately question whether the old ways of making money with their creativity can ever work for them.

Younger creators are going to be far more likely to try to “skip the intermediaries” and try to build relationships with their audiences. They are going to be calling for changes to the law which facilitate rather than harm this type of relationship. They will notice that their lawful independent creativity is often confused with the harmful activities that so-called “piracy statistics” are claiming to estimate. These studies often have statistical methodologies which are fatally flawed, something I have written about in the context of software copyright and the BSA/IDC studies.

Better future is in our hands

I recently suggested that new media creators get more politically involved in the various associations which are lobbying in their name. While this has upset some of the executives of the existing associations, I believe it is the duty of younger people, especially those more familiar with new media, to share their experiences. The changes that will be made to the law on behalf of those who liked the way media worked in the past will greatly affect younger people.

We need education in order for there to be respect for the rights of creators, but we need to ensure that this education is both factual and current. We no longer want industry associations and politicians spreading false information and making the situation worse, blaming everyone other than themselves for any problems. We also do not need associations pushing for radical changes in the law that try to “put the genie back in the bottle” on the tools which allow citizens to become participants in rather than passive receptacles of Canadian culture.

Rather that passing the blame onto young people for various problems (real or fictional), why can’t the rights and interests of future generations be protected and respected?

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