torrents are destroying the world

**abachler** · 07-10-2008

Originally Posted by Mario F.

none of the arguments seemed to address the fact it is indeed possible to criminalize the download of illegal copies without that necessarily meaning a witch hunt on downloaders.

Because it either places the onus of proof of innocence on the occused, something that is unconstitutional in the U.S., or removes fair use. There is no stipulation that the process of makign an archival copy need be done by myself, only that I am legally allowed to make AND to possess an archival copy. These are seperate rights, the right to make archival copes, and the right to possess such copies.

Makign an act illegal is in fact a direct invitation for said witchhunt. Why make something illegal if you have no intention of prosecuting offenders?

**Mario F.** · 07-10-2008

But that wouldn't change current regulations, only add other type of regulations. Software, even if considered an object, would always need it's own special regulations that would necessarily allow, among other things, for the copy for archiving/backup purposes (on those cases the maker decided so).

What I think is that software is being placed where it doesn't belong in that the only thing common between a piece of software and a music CD or movie DVD is the media that carries them. The contents are entirely different both in gender and purpose, as well as the way they are used.

However, that's a strong argument you have there regarding the onus of proof... thanks.

**CornedBee** · 07-10-2008

the only thing common between a piece of software and a music CD or movie DVD is the media that carries them. The contents are entirely different both in gender and purpose, as well as the way they are used.

I can't agree with that. How are they entirely different?

**Mario F.** · 07-10-2008

Originally Posted by CornedBee

I can't agree with that. How are they entirely different?

err... how else?
The development process of both kinds is entirely different and produces complete distinct types of products. How can we say software is akin to a movie DVD?

It is meant to be used on entirely different contexts (with the possible exception of software games and other entertaining software), requires completely different set of skills and tools, goes through different usage patterns, is under most cases a tool meant to generate other content...

I could possibly give it an hard thought and come up with a more sophisticated answer. But how can they not be different?

**maxorator** · 07-10-2008

IMO software, music, movies, slogans, logos - they're all intellectual property. Intellectual property cannot be stolen, it can only be copied. MarioF, by your explanation an apple and a TV are totally different types of property. They require totally different set of skills and tools too. But in this case, I think we're trying to look at the "big picture", where we want to sort things into a few groups only.

OT: I went to a forest, sat down on a stump, picked up some strawberries and looked around. Made a little campfire, ate some sandwiches I had taken with me. Everything looked intact. The world didn't seem to be any more destroyed than it was 5 years ago.

**Mario F.** · 07-10-2008

Well they are indeed. There's no intellectual property behind an apple, for instance. Which does reflect in its own ways, like an apple having no certificate of guarantee. But I do get your meaning.

The problem is that by trying to simplify things (a noble task) we sometimes may end up oversimplifying them. I think software should have its own set of rules that owed nothing to the entertainment industry typical regulations. It could borrow from both sides and thus better protect itself and avoid ridiculous situations like the one portrayed on the article linked by CornedBee... after all if I develop a software capable of cracking an known commercial application and openly sell it, what does it matter if no one bought it, or they bought it but ended up not using it? My action should be illegal.

**Mario F.** · 07-10-2008

I don't feel I should press this issue further. I'm fully aware of my intellectual limitations concerning legal matters. In fact the whole theme is alien to me, having never gained much interest on it past the usual considerations (I agree, I don't agree, I think this, or I think that).

...

But it feels really odd to me that we always end up discussing piracy in the context of who downloads, never uploads. And yet, the legislation works the other way around.

I mean, we always bring the issue as downloading illegal software is bad, and that you shouldn't download illegal software, etc... And yet, there seems to exist very few legal mechanisms to justify this mindset. I just feel like saying "Oh really? Then sue me. You can't haha! If its so bad, then why can I get away with it?".

EDIT: In other words, the more it is discussed, the more I'm getting convinced downloading illegal software is the smart thing to do under some circumstances. It may be too harsh... but I'm trying to find something to hold on other than the usual ethical considerations and I can't find it.

**CornedBee** · 07-10-2008

I don't understand why intellectual and creative effort going into the creation of software should be any different than intellectual and creative effort going into the creation of music.

Neither do I understand why a tool that gives me the possibility of making my use of my right to make a backup (a right based on the constitutional right to property, by the way) could be illegal, just because it also makes it possible for me to create illegal copies of the work. (The fact that we have a law similar to, if less restrictive than, the DMCA notwithstanding. Specifically, the law forbids circumventing "effective" copy protection mechanisms on digital media, whatever that means.)

But do you, personally, need anything but the ethical considerations in order to not download software? You're a developer yourself - how does it make you feel to download software someone else created, knowing how much effort goes into that stuff?

I haven't downloaded any non-free software in 8 years or so - back then, my sense of ethics wasn't developed enough.

**abachler** · 07-10-2008

Originally Posted by Mario F.

... after all if I develop a software capable of cracking an known commercial application and openly sell it, what does it matter if no one bought it, or they bought it but ended up not using it? My action should be illegal.

So if I sell a hammer, and someone uses it to mash their mates brains out, shoud I be charged with aiding and abedding? No. Because a hammers intended purpose is not illegal regarless of its ability to be used for illegal acts similar to the legal ones (mashing a nail into a board, mashing your skull into your brain). Therefor torrent programs and torrents themselves are defacto lega becuase their intended purpose is not inherently illegal. The EBook article failed to mention one thing. A EULA is a nonbinding contract, because it is not signed and notorized. Regardless of any text contained within it, it cannot forceably construe one act to mean another without the consent of the bound party. I cant write a EULA saying OK, by breathing you agree to be my sex slave for all time. It requires an ACTIVE agreement indicated by a legally recognied mark of consent. Therefor the EULA associated with EBooks cannto remove the customers right to make archival copies, even if it states that by using said EBook they give up that right. The contract has no force because they did not agree to it, nor does it carry the wierght of law when it stipulates an alternative action ( return it unused). The customer, having purchased it is under no legal obligation to enter into any agreement concerning its use once the purchase has been made. Now if they required you to sign a contract prior to purchase, adn refused to sell it to you if you didnt agree, then they can restrict your rights, but since they do not, they cannot.

**CornedBee** · 07-10-2008

Wait, wait, you're giving the impression here that no EULA is ever binding. That's not true, of course.

EULAs are a tricky thing. As I explained earlier, they only work because when software is sold, the customer doesn't actually buy a copy of a software, but is only given access to one under the rules of the EULA, which is part of the selling contract between the customer, the retailer and the distributor. This makes it legally binding.

However, there are some restrictions. The EULA doesn't stand over normal laws, which means it cannot take away a right I have - the whole sex slave thing. Nor can it take away my right to make a backup of the medium that carries the software, because that medium is my property (unlike its contents). Even if the EULA says otherwise, that part is simply not valid. See also the no warranty clause of your typical open source license, which is only valid if the law allows it - not so in Germany, for example, where some minimal warranty (only in the case of deliberately caused damages, I think, but bad neglect might be there, too) is always implied.

So how does this work in the case of Ebooks? Well, depends. Specifically, it depends what the buyer's contract says. If it's licensed like software, the EULA is binding. If not, it's not.

Either way, though, the EULA cannot take away my right to make backups, so the tool has a legal purpose. And it's not an EULA violation that Adobe sued for - it's a violation of the DMCA, which states that the creation of tools to circumvent copy protection is illegal. Yet the jury went against the DMCA and in favour of the right to backups, which IMO is a very important ruling, given that the USA uses a case law system.

**Mario F.** · 07-10-2008

Originally Posted by CornedBee

I don't understand why intellectual and creative effort going into the creation of software should be any different than intellectual and creative effort going into the creation of music.

And intellectual and creative effort going into the creation of a toaster? a television set? a mug? a shirt?

Neither do I understand why a tool that gives me the possibility of making my use of my right to make a backup (a right based on the constitutional right to property, by the way) could be illegal

Because it is against the expressed wishes of the developer as per your agreement when you decided to keep the software and use it. C'mon! what are we really saying here? That unless you personally agree with whatever it is written in an EULA or a copyright act or other similar document, it is ok for you to retain the software and still not comply to the document?

Where is the usual "if you don't agree, don't buy" in here? Only when it is suits us?

That person knowingly broke the rules. Worst, he tried to make money of it. And yet... he walked. That's just crap! Agreeing to his actions because you happen to not agree with the DMCA rates poorly on me.

But do you, personally, need anything but the ethical considerations in order to not download software?

No. But what's your point? Has ethics stopped others from doing it?

**CornedBee** · 07-10-2008

And intellectual and creative effort going into the creation of a toaster? a television set? a mug? a shirt?

Any individual toaster design is indeed under copyright. If another company makes a toaster that looks exactly the same, they've violated it.
If you make a toaster with a particularly nifty feature, like, say, the ability to draw images using burn marks, then I hope you patented that feature.

Because it is against the expressed wishes of the developer as per your agreement when you decided to keep the software and use it.

Which developer are we talking about now? The one that tried to keep me from my right to a backup by putting a copy protection on his software? Why should I give a damn about what he wants? He's trying to take away my rights.
Or if he only wants to stop piracy, then he can't complain if I circumvent the copy protection for a backup.

That unless you personally agree with whatever it is written in an EULA or a copyright act or other similar document, it is ok for you to retain the software and still not comply to the document?

I'm saying what I said in my previous post: the EULA does not trump the law. If the EULA tries to take away a right I have, that part is void, no further comments, even if I accept the EULA. I'm not legally bound to comply with those parts, and I don't feel ethically bound to do it either.

Agreeing to his actions because you happen to not agree with the DMCA rates poorly on me.

The DMCA was set up in direct contradiction to an existing law. When the company forced the issue, when the DMCA and the backup right went head to head, the DMCA lost. I have no pity.

**Mario F.** · 07-10-2008

In fact, from what I read, what happened was that it couldn't be proved others used his software. It case it could have been proven, he would have lost and the law upheld would be the DMCA.

EDIT: The DMCA is a law, CornedBee. Not something you are meant to agree or not and don't respect just because you don't agree. Personally it irks me having to pay VAT on top of fuel taxes. It's against an existing law that prohibits this type of taxation. But It's there and it's a current law in Portugal and I better obey. If anything I can protest. Not openly disobey.

**mkruk** · 07-10-2008

I don't think the analogues between software and material items like a tv-set or a car are applicable. As you all know, each car (for instance) has a material price, i.e. the steel, rubber and so on, plus the salaries for designers, workers, etc. But if you look at software, it's completely different. You pay once for the programmers and marketing guys and you end up having a product you can copy over and over with no additional cost (except for the disk).

Keeping that in mind, when you buy a car you own it and you can disassemble, modify and sell it like you want. You can do virtually everything with it as long as you don't infringe a patent (if you produce your own cars) or local laws.
Though if you buy software, you don't own the software. What you own is the disk, the manual, the packages (the media) and last but not least the right to use it (which is resticted by the EULA or probably extended by local laws). So you may use the software according to the EULA. If the local law permits it, you can also create a backup copy. Though you may not modify, copy, disassemble or redistribute the contents of the media you bought (I guess this also applies for the manual), because these are still property of the copyright holder.
Violating the copyright holder's rules is, what's called copyright infringement and is not the same as stealing. Copyright infringement can be simply disassembling code without even distributing it. Though looking at piracy, the analogues for the comparison of copyright infringement and stealing would be copy and move. If you illegaly duplicate software, it's copying because the source copy still exists and is usable by the license holder. While stealing makes the object unusable (or unreachable) by the original owner, the object is moved to your assets.

Regarding the torrents, I wouldn't blame them. It's been said quite a few times and I can only support it: The technology has a lot of useful, legal purposes like spreading FOSS, effectively reducing bandwidth on the servers. And blaming torrents would be like blaming streets for hit-and-run driving. The point that piracy actually creates free advertising for the copyright-holders is also an interesting point I didn't realise earlier. Though I'm not sure how effective this is.

Apart from that, I think piracy is okay if and only if you buy the software afterwards, if you're going to use it any further. If a developer created a decent piece of software, which is useful, he shall receive his salary and his company the money they deserve. I think this applies for all kind of software (with some exceptions). Games for instance aren't expensive and even a child has the money to buy it. Even applications like 3DS, Maya or CAD-software are very expensive, but the price is justified, because large companies buy them to create revenue. They usually even have lower prices for students and other non-commercial users.
In my oppinion, the only exception for this is Microsoft software. Their software is just needlessly expensive, with regard to their OSes which are like a lobotomised child with tourette syndrome in compare with linux and other unixes. (I'm sorry, I just had this comparison in my head.. and I liked it

) Anyway, the point is, that I'm not willing to pay hundereds of EUR for a DVD which is packed with contents I have no other right on than to use it. Apart from that, all the content is capable of is placing a basic OS on my machine with basic OS functionalities and some pieces of software like an editor and calculator. Correct me If I'm wrong, but I think it's much more effective to install linux with compiz to acchieve the same thing that Windows Vista does.
Though, this applies only for home users. For companies this is something different, because it might be cheaper to buy 20 windows licenses than hiring teachers to give their employees lessons on how to use their machines.

Though I just realised that I really wandered from the subject here.
I guess the above can be abbreviated to the following: Piracy has it's upsides and it's downsides. No matter what, you can not stop it. Each coin has two sides which you can't ignore. Where's life theres death. Where's light there's shadow. And where's software, there's software piracy.

**IceDane** · 07-10-2008

A common misconception is that piracy actually steals a lot of revenue from the industry(ies).

This isn't necessarily true. I have used my share of pirated software, games and seen my share of pirated movies. Were I unable to have such easy access to it, as the internet allows today, would that mean I would rush out to the stores or theaters to buy whatever I might have downloaded? No way in hell.

Very little of this is done due to lack of money. Like the fact that I've used a version of MSVS that was pirated was not directly because I didn't afford the real one, but rather because I wasn't willing to spend the money on it and I had the opportunity to acquire it by other means. Same goes with movies. I wouldn't dare rent or go to the theaters to see all the movies I've seen that were pirated. I'd be broke in an instant.

The opportunity is there. Who am I not to seize it?