IP 1. an abbreviation for intellectual piracy, the legal but unconscionable theft of knowledge from public and private sources. See SCO v IBM or Winnie the Pooh. 2. (deprecated) an abbreviation for intellectual property. When most people think of software piracy they think of criminals mass producing stacks of counterfeit CDs or teenage wannabe hackers trading warez on IRC. Not me. I think of Microsoft, Adobe, the BSA, and even more recently, of the SCO Group. Here's why. Intellectual piracy of the latter kind is a thriving business. Corporate leaders like Darl McBride have turned legal terrorism into a primary profit center. The SCO group manipulates their stock price with press conferences trumpeting their billion dollar lawsuit against IBM. But the practice and the problem is much larger than SCO. The tools being used enjoy the force of law. Consumers and the industry itself are being held hostage by egregious contracts, laughable software patents, bad copyright law, and licenses designed to silence criticism and enslave consumers. Add to that steaming stack of anti-consumerist law the DCMA, Super DCMA, and UCITA, and you have a real mess on your hands. Richard Stallman, patriarch of the free software movement, recently wrote about the obfuscation SCO was able to achieve simply by using the term "intellectual property." Stallman said "This fashionable but foolish term carries an evident bias: that the right way to treat works, ideas, and names is as a kind of property. Less evident is the harm it does by inciting simplistic thinking: it lumps together diverse laws--copyright law, patent law, trademark law and others--which really have little in common. This leads people to suppose those laws are one single issue, the "intellectual property issue," and think about "it"--which means, to think at such a broad abstract level that the specific social issues raised by these various laws are not even visible. Any "opinion about intellectual property" is thus bound to be foolish." (1) I agree completely. So instead of talking about IP as a bundle, let's break it down into three of its component parts: copyright, patents, and other. Then we'll sum it up by showing how they all combine to harm consumers. Copyright According to Article 1, Section 8, Clause 8 of the American constitution, "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first congress did exactly that, passing the Copyright Act of 1790. It gave authors, artists, and inventors exclusive rights to their work for 14 years, with a single 14 year extension available to them. When that period ended, the copyright passed into the public domain. The law has been modified time and time again, and the period of protection has increased dramatically. Works created today are protected for the life of the creator plus 70 years. If the work is created by corporate authorship (including work for hire), it is protected for the shorter of 95 years from date published or 120 years from date of creation. Oh, bother. Let's look at Winnie the Pooh. A. A. Milne wrote four Pooh books in the 1920s. Pooh was popular from the beginning. At Milne's death in 1956, the books had sold more than seven million copies and were still covered by the original copyright. Our copyright laws at the time of publication protected Milne's copyright for 75 years: an original term of 28 years plus an extension of 47 years. But in the interim the law changed again, extending the extension to 67 years. A fact which is of enormous interest to the current holder of the copyright, since without it the works would be public domain today. Today the rights to Winnie the Pooh are owned by Disney, a huge global corporation. Milne's grandchildren are in a wrestling match with Disney over who gets which slice of the pie. Under the copyright law in effect at the time of publication, neither his grandchildren the corporation deserve any further protection. The works should be in the public domain by now. Disney and Milne's grandchildren are parasites. Their rights to the copyright do absolutely nothing to encourage the creation of similar works. Neither are science and the useful arts being advanced. The current Pooh monopoly is good for nothing except the Disney bottom line. Copyright law has been kidnapped by self-serving corporate America. Software patents I can still remember when the visitor from EDS corporate legal team spoke to our EDS account in Austin in 1990 about software patents. He was there to encourage us to look for methods and ideas in the accounting software we were installing for the State of Texas that we could patent. I laughed at the idea. He said don't laugh, IBM had already patented the blinking cursor. We laughed some more. We shouldn't have. The first step in negotiations between software firms these days is the cross-licensing of patents. He with the biggest bag of patents is the baddest. IBM, with more patents than anybody, is feared because of the sheer weight of their bag of patents. If you develop software, and the cursor in your application blinks, don't laugh. You could be sued for patent infringement. People stopped laughing at software patents in 1994. That's when STAC Electronics won a $120,000,000 judgement against Microsoft for patent infringement. Microsoft had infringed by including STAC's data compression methodology in DOS. At the time, it seemed like a good thing. David vs Goliath and all that. The little guy being protected by the law from the evil ways of a predatory monopolist. (2) But things changed. In 1995, two small firms filed patent infringement suits for almost universally used ecommerce methods and the insanity had begun. It hasn't slowed down any, and the practice is no longer limited to small firms. Remember the uproar over the "one click shopping" patent awarded to Amazon? Most clear thinking objective observers are against the further growth of software patents, but I fear it is too late for clear thinking to win the day. The EU is moving towards adoption of US style software patents later this year. (3) That to the detriment of just about everyone except global mega-corporations. Former French Prime Minister Michel Rocard recently said in an interview: "Software patents should be permitted only if something uses the forces of nature or acts on matter. [Otherwise] the patentability of software is likely to create a terrifying financial and legal threat, weighing down on software creators." (4) Other law Part of the problem is the way that the laws defining and controlling intellectual property have been taken over by the unholy alliance of big business and the government. Intellectual property laws today are not concerned with the idea of fair use, or with the original intent of copyright. These laws exist only to protect and to serve corporations. Benito Mussolini knew what he was talking about when he said "Fascism should more properly be called corporatism, since it is the merger of state and corporate power." (5) While Mussolini lusted after the power created by such a marriage, Eisenhower warned us of the dangers in such a union. In his famous speech at the end of his second term he said "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist." (6) Eisenhower was right. The corporate world rules America today. Given the wink and nod Microsoft got from Ashworth's Department of Justice after "losing" its anti-trust case, the malignant monopoly's grip on the personal computing industry is more formidable than ever. It's like the Iron Curtain. If the Microsoft monopoly had existed during Ike's last term of office, he might have been tempted to send federal troops into Redmond instead of Little Rock. Consider the harm accomplished by the DMCA. In the summer of 2001, just weeks before 9/11, one of the top priorities at the Justice Department and the FBI was surveillance of a hackers convention in Las Vegas called DEFCON. The FBI was there at the request of Adobe software. They wanted to have Dmitri Sklyarov, a Russian college student, a programmer, an employee of a Russian firm, arrested for violating the DMCA. And they got their way. In the end the feds lost the case, just as they should have. What Sklyarov and Elmsoft were doing was perfectly legal in Russia. Many have pointed out the irony that it is in Russia where consumers are actually still protected by the law instead of victimized by it. In fact, in Russia Adobe could be arrested for selling software that doesn't allow consumers to make backups. But not here in the USA. You and I and our neighbors down the street don't have lobbyists working 24x7 to overwhelm elected lawmakers with our agenda. Big corporations budget for it. It never ends. In the end All the above, when it is rolled into a tight little ball of dung suitable for a beetle buffet, results in a world where everything is as backward as Microsoft funding a software choice campaign. Take a small business, for example, which has grown over the years from 3 employees in a garage to almost a 100 housed in a new building. All of them with desktop PCs, and a few servers and laptops thrown in for good measure. Over the years, software bought for one PC has gotten moved to another as hardware was replaced or repaired. Proofs of purchase have gotten misplaced or lost or thrown out in the packing boxes the hardware arrived in. According to the law, that's a crime. The business is liable for fines of up to $150,000 for each missing proof of purchase. Microsoft and the BSA regularly accuse such firms of software piracy, collect huge fines from them, or use the threat of those fines to extort them into expensive new licensing agreements. That is happening every day across the country. Never mind that Microsoft and their thugs at the BSA are marching behind an "anti-piracy" banner, they are the ones wearing an eye-patch and brandishing a cutlass. How does this happen in America where everyone is presumed to be innocent until proved guilty? Easy. Put an asterisk next to that everyone. Add a caveat which says unless you clicked on a 5,000 word licensing agreement which you are forced to read 2 or 3 lines at a time while on-line, or purchased a product with a shrink-wrap license inside the box, unaware of its contents. Or never bothered to read the EULA that came with your new PC. Under those conditions, you are guilty when you are accused, and it is up to you to prove otherwise. Even if a copy of Windows was stolen, we're talking about a value no more than a few hundred dollars, so how do the fines get to be so large? Copyright law, that's how. It doesn't matter what the software is worth. This is what allows the BSA to terrorize honest businesses, schools, state and city governments, and forces them into expensive, exclusive licensing agreements. Believe it or not, no matter that the playing field is tilted 30 degrees in its favor, Microsoft is still not satisfied. They want more. So they have begun to change the licensing on the fly. If you buy Windows XP under one license, you don't know what kind of changes will be made to that license when you need to get security or bug fixes for it. Today the answer is that the EULA next time is going to be whatever Microsoft wants it to be. You have no say in it whatsoever. Whatever terms you agreed to in the beginning just don't matter. In this case, it is the combined weight of the monopoly, the law, and the wild (the results of running unpatched Microsoft platforms with known vulnerabilities) all combine to crush your rights underfoot like an elephant stepping on a grape. And who knows. Perhaps if the FBI hadn't wasted all those man hours and all that effort it spent to arrest and interrogate and investigate Sklyarov, if they hadn't disappeared him from the face of the earth for two weeks while transporting him from Las Vegas to California via baud only knows what route, all for the sake a stupid provision in a stupid law that doesn't apply to Russian firms doing business in Russia in any case, then perhaps they might have been able to stop the 9/11 attacks from ever having happened in the first place. Probably not, but maybe. One thing is certain. All that wasted time and effort by the nation's top police agency on behalf of a greedy corporate master didn't help prevent it. The last time things were this much out of kilter with the government and a monopolistic corporation on one side of the law and consumers on the other, a few brave souls decided to throw a tea party in Boston. Today's the 4th of July, a celebration of American independence and freedom. What little of it is left, at least. It's a damn good day to start restoring a little balance to the marketplace. What can be done? Working to repeal the DMCA and restore consumer rights to fair use would be a good start. Blocking UCITA and any other laws designed to lend further legitimacy to unilateral licensing changes by greedy monopolists is another thing that needs doing. Making licenses which require users to surrender their rights to due process illegal and unenforceable is a good idea, and it would end the BSA's reign of tyranny. Let's not forget to bring copyright law back into sync with its original intent, and tie the penalties for infringement to the value of the product. Those are all worthy efforts. Pick any one of them, or pick your own action item. But do something. The government is not going to do it for you, not unless you insist. Just remember, corporate lobbying never stops. It may already be too late. But unless we do something now, the day will surely come when the only recourse to the tyranny is revolution. Sources: (1) Stallman on ZDNet: SCO smear campaign can't defeat GNU community (2) ComputerWorld: Patents may be key to survival (3) Open source prepares to kiss EU patent ass goodbye (4) French ex-PM condemns software patents (5) Mussoline on corporatism (6) Eisenhower speech on Military-industrial complex Related reading: Timeline of Copyright History DMCA Copyright Act - Status & Analysis The History of Software Patents Huge Loss for Disney in Federal 'Pooh' Copyright Case Biography of Alan Alexander Milne (1882 - 1956) Microsoft winds up on both ends of software piracy stick The History of America