Adapted from "Software Trespassing" by David Deutsch

Software Piracy is theft. It's just like real piracy, in fact. Software pirates burn down your houses, rape your wives and children and take all your livestock. No, really.

Okay, so it's not exactly like real piracy - more like the Johnny Depp kind of piracy where a ruggedly handsome, unshaven, longhaired rogue who's never had a real job thumbs his nose at authority and steals things from the rich that they won't really miss.

But software piracy isn't glamorous. Roguish charm notwithstanding, piracy is stealing, and stealing is wrong. Stealing is wrong because when somebody has something and you take it, then that hurts them, and they suffer. Those software manufacturers only have a finite number of copies of their software, and every time you copy one that number is reduced until eventually they'll run out... er... no, what I mean is, it costs a lot to make that software, and if you pirate a copy then you prevent them from selling it to somebody else and... er, no wait that's not it either.

Okay, so maybe software piracy isn't exactly like stealing - maybe it isn't anything like stealing, but it's still wrong. If you are gaining by your actions, and giving nothing tangible back then somebody else is losing, right? Gaining from the labour of others without giving anything back to them isn't nice is it? And theft isn't nice either, so it's a valid metaphor if nothing else. Right?

Well, almost anything is a valid metaphor for anything. But people go to real jail for software piracy - they go to jail for the metaphorical crime of stealing software, because, as we have just established, theft is only a (very forced) metaphor for software piracy, not an accurate description - is it really acceptable to have our our laws derived from metaphor?

Pierre Joseph Proudhon wrote in 1840 that 'property is theft', and the implementation of that pithy metaphor about property ended up crippling half the world's economy for most of the twentieth century. So, how much truth is there in the 'software is property' metaphor?

The truth is that software piracy is not very much like theft, any more than ownership of property is. But like the institution of property, it does often seem to result in one party that feels guilty about benefiting, and another that feels as if they have been hard-done-by, and just as in the case of property, this misguided sense of wrongdoing has lead people to jump to conclusions and commit acts of tyranny in the cause of righting this imaginary wrong.

So when a student copies an expensive graphics package from a CD at university onto his home computer, who is being harmed? Not the CD's owners, for their property has been neither taken away nor damaged, and is just as available for use as before. Indeed it is more available, since that student will now be booking less time on the university's computers.

He has not harmed the software manufacturers, despite their claim to still 'own' the software, even after they have sold it (an apparent side effect of the same reality-bending logic that allows them to claim theft of an item that hasn't gone missing, and in any case may have been taken with the actual owner's consent). If he had obeyed the law, they would still not have gained him as a customer because the package costs more than his annual disposable income. Another form of 'piracy', where several such students club together to buy the software and then copy it, actually creates additional sales which would never occur if people were unwilling to break the law.

And even if the student buys no part of the software, his crime may still benefit the manufacturers, for every time he shows off the software or creates something impressive with it, they get a free advertisement. Later in his life, when that student and his friends are employed as graphic designers, perhaps as a result of skills they developed by using that very software package, they are more likely to buy something whose features they already know and like. Whatever influence they have in their respective companies may then be used to persuade them to buy copies for all the design team.

It may even be that the key factor in the future success of that software over a rival package is how easy it was for a generation of students to acquire a pirate copy.

'But wait,' I imagine the Business Software Alliance objecting. 'We can't make exceptions. Admittedly, that particular pirate is doing us no harm, and perhaps in some twisted way he is even a public benefactor, but if we let him have free copies, soon no one will ever pay for software and we'll all go out of business.'

On a purely factual level, this doesn't seem to be quite accurate; according to the BSA's own figures, only 35% of software in use today is pirated (and lets remember that according the BSA's rather broad definition of piracy, this will include, for example, people running software that they have purchased on two or more machines, contrary to the license). So the real present-day situation is that the student in question is getting his software free, yet millions of others are nevertheless paying for copies and the companies are not going out of business.

It is unlikely to ever be a majority who pirate - students do it because it's 'cool' and/or because they have no money, but serious businesses will never pirate because they cannot afford the consequences, and because they require support and maintenance agreements from the suppliers. Similarly, affluent 'adults' will not pirate because they have neither the time nor the inclination to trawl the dark recesses of the Internet looking for seedy pirate web sites when they can more easily walk into a shop.

This argument is therefore rather weak. It would also force them to abandon the comfortable moral high ground of their claim that 'software piracy is theft'. Instead they must wade into the moral quagmire of trying to excuse, on grounds of mere expediency, their own relentless pursuit (at the taxpayer's expense) of individuals, many of whom have demonstrably done them no harm and even yielded them a substantial benefit.

So if software piracy, unlike theft, is an activity that may or may not have a negative impact on the 'victims', can we find an existing legal precedent with which we can draw a more convincing parallel? As it happens, there is an established legal definition that bears a much closer relationship to the act of software piracy, close enough that I would be comfortable in drawing a solid comparison...

There is an ancient precedent for property whose unauthorised use need not deprive the owner of anything valuable. The precedent usually cited is that of copyright law. But copyright law is not applicable in this case - copyright was intended to ensure that an author is credited for his work, and that no one else can claim it as their own, or seek financial gain from distributing it without the author's permission or consent. Neither of these is applicable to the form of piracy we are discussing - the implied extension of copyright law to prevent someone using a tool that they have purchased as they see fit (in this case by sharing it with friends) is yet another example of a metaphor stretched beyond reasonable limits.

No, I have a different, and even older, precedent in mind: the law about trespassing on land. It has evolved to treat trespassing very differently from the theft of property. The basic reason is that if a rambler takes a short cut across the Earl's estate, steals nothing, damages nothing and surprises no naked aristocrats bathing in the stream, then he (or she) has done the Earl no harm, so the Earl is entitled to do him no harm in return.

But there is more to it than that. To interpret trespassing as 'theft' just because it involves the unauthorised use of property would tend to conflict with other fundamental values of our society, such as the freedom of travel and of association. Similarly, as soon as 'intellectual property' is interpreted as being equivalent to physical property, it conflicts with the principles of freedom of expression and (since a computer is, after all, a means to record and augment ones thoughts) freedom of thought.

This moral distinction is still reflected in public attitudes. Unauthorised users of software are not - despite the best efforts of the software consortiums - viewed in the same light as burglars, any more than ramblers, demonstrators, or even squatters are, even though they all use other people's property without permission.

In the case of trespassing, the law respects this intuitive distinction: theft is a criminal offence while trespassing is a civil one. One consequence of this is that the penalty for trespassing is essentially only to pay for any harm done. If a trespasser has done no harm, he can only be forced to quit the property in order to restore full use to the owner. Even that would not be necessary if he had merely copied software, so if the unauthorised use of software were classified as 'trespassing' instead of 'theft', the students in the example above would not be unjustly criminalised and their beneficial activities could continue. If they ever did do harm - for instance by setting up in business to sell pirated copies - then their fate would be the same as that of a trespasser who charges other trespassers an admission fee: any takings would be confiscated and (depending on circumstances) they might be guilty of an actual criminal offence such as fraud.

Another key difference is that the state is not responsible for detecting and pursuing a trespasser, evicting him, collecting evidence of the harm he did, and bearing the risk of failing to make the claim stick in court. That is up to the property owner. What difference does that make? The market forces created by the effects of piracy would tend to force a software manufacturer to behave morally towards pirates of its software by ensuring that they would be financially penalised by pursuing their benefactors, or by investing disproportionate effort and expense in victimising pirates who have little or no financial impact on their organisation.

But by handing that responsibility over to the state, that burden is taken from them. And if the law is sufficiently broadly and hazily defined (as it must be, so long as it is based on a specious metaphor) then they need only voice their opinion that an individual is threatening their business and the police will be forced to chase that person down, at the taxpayer's expense. Everyone, including the company itself (through bad publicity, and future repercussions) loses out, but the cost is spread sufficiently widely as to be lost in the sea of bureaucracy that accompanies any state-run enterprise.

And there is a more sinister cost. The trend in recent years has been towards the creation of new and interesting means of distributing valuable information, and from this has sprung a variety of ingenious ideas for ways to make money from doing this. The traditional methodology of charging for the mediuminnovate their way back into profitability. The most obvious example of this is advertising, and whilst this is loathed by some, you cannot deny the power of advertising as a means to fund 'free' services that could otherwise not exist. (whether it be a cassette tape, a DVD, or the bandwidth of a broadband Internet connection) has largely fallen by the wayside as the media distributors have been forced (at least partially by the realities of piracy) to

It would be very foolish to assume, at this relatively early stage in the development of intellectual property, that one particular method of deriving profit from it (namely having the police chase down any unauthorised user who is denounced by an informer) is the best or only possible one. By conscripting our governments into a war against the pirates, the software and media distributors are attempting to beat piracy without adapting or innovating, simply by the application of brute force.

It is a sad reality, particularly for large and bloated companies, that change is difficult, and almost any expense (especially if they can get somebody else to incur it) is preferable to the risks associated with abandoning their established practices. What they are trying to fight is not piracy, but change, and in so doing these companies are set to stifle all progress in media technology.

I am not suggesting that software companies shouldn't fight piracy - it is this very fight that spurs much of the innovation I've been advocating - I only ask that they fight fair. Software crackers and pirates (the good kind) are motivated by the challenge, the excitement of outwitting the big fish, and of always having the latest and greatest new thing to play with. Most pirates are students, and students are also one of the highest-spending consumer groups. They have demonstrated time and again that they are willing to spend vast amounts of money - often more than they can afford - on the right technology if it appeals in the right way. That means the right product delivered at the right price via the right medium.

Judging this balance has always been a key part of the task of product development and marketing - to try and shirk this responsibility by creating a product that people want but won't buy, and then vilifying, alienating and incarcerating the potential punters instead of admitting that the product needs reworking is an incredible waste of resources, and both pragmatically and ethically questionable.

Some developers have been so turned off by the unpleasantness of this process as it exists today that the free software foundation has been born, with the explicit brief of encouraging users and developers to abandon license-encumbered commercial software altogether. I agree that free software is great from a user perspective, but I believe it is only one possible solution in the spectrum of possible ways to make software without oppressing the people that use it.

Software makers need to turn their attention to making their customers feel good about paying for their products. That means value-added features, quality and service, constant innovation, piracy prevention methods that don't harm their paying customers, and most importantly always occupying the moral high ground, and by that I mean the actual moral high ground - Bringing the full force of the law to bear on a 13 year old girl with an illicit copy of Britney's Virtual Dance Studio doesn't really qualify - they need to learn to accept that piracy is inevitable from a proportion of users, and to concentrate on trying to turn as many of those pirates into legitimate users as possible, which isn't best achieved by locking them up!

The bully boy tactics of the BSA only serve to further the 'Sheriff of Nottingham' image that the software corporations are fashioning for themselves, making people all the less likely to want to give them their money. As Google famously proclaimedDon't be Evil!' (before trying to take over the world) '