All bits are equal..

but are some more equal than others?  As ever, you can read this piece on the Technology pages of BBC News online.

The Federation Against Software Theft, FAST, was set up over twenty years ago to raise awareness of software piracy and lobby Parliament for changes in the law to help software companies protect their business.

It has had a high profile in the computing world, and many companies have been prosecuted for using unlicensed software following its investigations.

This has had a big impact. According to a recent press release the number of businesses using software without a license was 45% in 1994 and 27% in 2004 – although it stayed at 27% in 2005 so there is clearly work to be done, with over a quarter of companies apparently breaking the law.

FAST is largely concerned with copyright enforcement and as a result it is closely allied with the music and film industry, both of whom are very worried about unauthorised copying of their product.

Just this week it  called on the government’s Gowers Review into UK intellectual property law to address what it calls ‘the deficiencies in the IP regime’. FAST thinks that the police don’t take enough notice of software piracy, and it would like more forms of copyright infringement to be treated as criminal rather than civil matters, so that the police can prosecute instead of leaving it to the lawyers to sue.

This serves the interests of the film and music industries, of course, since they’d like to see anyone who downloads a song without permission prosecuted in the criminal courts, but it creates a problem for those of us who think that copyright law is already too strongly enforced and that our ability to share should also be defended.

It would be helpful if the two sides could be separated, because then the software industry might be persuaded that locking down content in ways which require companies to build media players with limited functionality that can’t do things users want is a waste of time.

At the moment software publishers feel they should support restrictive copyright law because it protects the programs they write.  Code falls under copyright law like other forms of creative expression, and in the digital world a piece of software is just another collection of ones and zeroes, indistinguishable from a music file or a ripped DVD.

But are they really the same? We are repeatedly told – I’ve said it myself many times – that a bit is a bit it a bit, and that since the meaning of a collection of bits lies only in its pattern of use we should not discriminate between them.

That may be true when it comes to moving data across a network like the Internet, but it isn’t the case in the bowels of a computer. The chip in your PC knows that some bits are data and some are instructions, and it works very hard to keep them apart.

The instructions, translated from a programming language like C or Java into a binary language that only the processor understands, are conceptually as different from the 32-bit codes for each pixel in a bitmapped image as the electric current in a mains cable is from the current in your nerves.

Both involve the movement of electrons in a voltage gradient, but one is just a way of moving energy while the other creates patterns of activity and underpins our emotions and intelligence.

Software is not the same as books or music or film. It expresses instructions, and is more like a machine than an expression of creativity. Perhaps we should recognise this in the way we apply copyright to programs, and distinguish between the code, which is a form of writing, and the compiiled executable. Perhaps we should not treat software as a form of intellectual property at all.

This could be construed as an argument in favour of software patents, since it sees programs as just another type of machine, and innovative machines can be patented.

But the point is not to protect program code or allow the ideas it expresses to be patented, but to offer stronger legal controls over the distribution and use of the finished product – the binary files that contain the instructions used by the chips in our computers.

We don’t need to allow software patents in order to  achieve this, and nor do we need to rely on copyright to stop people copying program. We can just call it theft and prosecute those who steal under the same laws we use to protect cars and tables.

If we allow that programs are not the same as poems, and that Microsoft Word can be ‘stolen’ in a way that a White Stripes song cannot, where does this leave us?

Well, it means that the interests of the software industry and the music publishers do not have to be completely aligned.  FAST and other industry groups could argue for better protection and stronger enforcement of their property rights without implicitly endorsing the RIAA’s legal campaign against 12 year old downloaders.

Downloading an unlicensed song doesn’t feel like theft in the way that taking a CD from a shop does, and very few young people are convinced by the music industry’s increasingly desperate rhetoric, but we may be able to persuade the next generation of net users that installing a stolen program is different.

Perhaps those working on the the Gowers Review can start this process by proposing stronger laws to apply to the bits that do things, while encouraging fairer and more balanced controls for the bits that solely capture the outputs of creative expression.

Bill’s Links
Gowers Review
No software patents

2 Replies to “All bits are equal..”

  1. Code should get more legal protection than text because it’s a set of instructions? By that logic, should an Alegbra text book be given more protection than a novel?

    Why should illegally downloading a video game based on the X:Men be “theft,” while doing the same to the comics, cartoons and movies based on the same materail be declared “infringement”? Is there an actual benefit to society here, beyond ensuring programmer job security?

    I can understand why anyone would want to distance themselves from the RIAA, but this seems like a shaky reason for declaring one kind of imaginary property more valuable than another.

  2. How does FAST propose to pay for the policing and the criminal prosecutions? Policing costs money, so who’s going to foot the bill? An extra tax for software? And just where do those piracy numbers come from?

    I think distiguishing between source and compiled forms of a programme is a mistake. First and foremost, under the “sharing prose is not as bad as sharing working machines” concept, then it would mean that distributing source would be almost “ok” – so all somebody would have to do is run the executable through a disassembler and share the assembly source code. Assembly is prose to those skilled enough to read it, in the same way C is prose to those skilled enough to read C (the only difference is that C is easier to learn) and, like C, assembly must be turned into machine code in order to run. Conversely, what about scripting languages where there is no binary form of the programme – the “source code” is directly executed by the interpreter? Why should an application written in C and compiled to machine code get greater protection than a similar application written in Ruby where the source is interpeted at run time? And what about languages like Java and Python, where the source is translated into virtual machine code – it’s compiled to an intermediate form and then that is interpreted?

    My personal feeling is that software piracy is going to slowly die out as software as service becomes more popular (let alone the rise of open source). When you access your word processor online you can’t exactly pirate it. It’s such a win for the software industry (no piracy + subscription income) it’s going to take over, eventually.

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