Piracy - what we should be asking

[noname2200]

Apologies for the stream of consciousness that's about to follow.

The more I think about software piracy, the more my head starts to spin at the numerous contradictions. I'm definitely opposed to it, not so much because of the lost sales idea (I myself firmly believe the bulk of pirates would never have purchased the product) but because you are simply taking something that belongs to someone else without that person's permission. That's basically the reason that the doctrine of unjust enrichment was created, a doctrine that I think clearly applies here.

The problem is that we don't apply that principle evenly. It is, for example, perfectly legal to record any television program for your personal, non-commercial use, even when the program is a movie that you would otherwise have to purchase. I don't believe it's at all illegal to use a tape recorder to record any song you hear on the radio. And while things get murkier with photocopying books, I find it revealing that every law library in the country contains a photocopy machine for patrons' use.

One could argue, with some success, that the situations are not completely analogous with software piracy, as with the above examples the consumer had permission to use the product in some form, while software pirates simply take the lot without the copyright holder's knowledge or consent. But at the same time, the copyright holder is only letting the consumer use the product for a limited purpose: it is not their intent to give away their content for permanent use. Indeed, movie studios unsuccessfully sued VCR manufacturers for just that reason. What makes software piracy any different? Ease of use? In the age of Tivo I don't think we can really use that argument anymore. For that reason alone, I think point D is slightly off the mark: this is NOT a new problem by any stretch.

I think the question you ask at the end, and the way it is framed, is a good one, and I would look to the past to answer it. Copyright holders fought the VCR tooth and nail, but when they were forced to live with it, they ultimately co-opted it to their advantage, to the point where they often make much more money on selling the DVD than they do at the box office. I think this shows that most consumers WILL pay money for the product under the right circumstances, although what those circumstances may be remains to be seen. I would also add the caveat that things have indeed changed since the 70's, and that copyright holders now have less power to control how their product is distributed than ever before.

I'll keep thinking on this.