One might be tempted to ignore this as a bit of presumptuous paternalism. Howver, the LSUC should never be ignored. There’s a mandatory aspect to all of this and the LSUC does have the power to govern the legal profession. But, wait till you see what they define as “illegal”.
The LSUC has a publication innocuously called GUIDELINES ON ETHICS AND THE NEW TECHNOLOGY. This was apparently prepared by or for the Law Society of Alberta and disseminated by the Federation of Law Societies of Canada in 1999. It has been adopted by other provincial law societies as well. Here’s the orginal document, with some references that are missing in the LSUC version. Note the several references to the Copy Right [sic] Act.
It deals with such innocuous topics as advertising on the Internet, not practicing in jurisdictions where one is not licensed, etc. Then, for some inexplicable reason it has as its centrepiece a section entitled SOFTWARE PIRACY with a whole appendix on the subject. The sources of information are the Software Publishers Association – now the Software and Information Industry Association (“SIIA”) and Microsoft. The SIIA is a very powerful Washington lobby and anti-piracy trade association.
According to the LSUC (on the advice of its ever so dispassionate sources of information):
Software piracy is illegal and unethical. Lawyers shall ensure that support staff and students-at-law uphold the ethical standards of the lawyer’s practice. The management and organization of and compliance with license agreements for
all software used by a firm shall not be left entirely to an office manager or
A lawyer can guard against accidental software piracy by carefully reviewing the provisions of the software licensing agreements for software used in the office. Where strict compliance with the licensing agreement may cause a hardship, exemption must be sought from the licensor.
Nowhere does this publication tell one that the Canadian Copyright Act has explicit provisions (s. 30.6) that permit, inter alia, the making of a backup copy of a program or the making of a copy for the purpose of making a program compatible with the user’s hardware. Whether doing so could entail a breach of contract is another and by no means clear matter – but it is emphatically not copyright infringement.
The appendix gets worse. It states “Pirating can occur whenever copying occurs.” And what is copying? Well, why don’t we ask Microsoft? According, to Microsoft, as adopted by the LSUC:
What is software piracy?
Software piracy is the unauthorized copying, reproduction, use or manufacture of
software products. Microsoft defines “copying” as:
(1) downloading software reproducing it) on a computer’s temporary memory by running the programs from a floppy disk, hard disk, CD ROM,
(2) downloading software onto another media such as a hard disk (e.g. a diskette) or a computer’s hard disk (the computer’s main information storage area); or
(3) using software that has been placed on an office’s network server.
Those categorical statements ignore the fact that this is how programs are meant to be used, and that s. 30.6 of the Copyright Act exists.
The appendix contains the blatantly incorrect categorical statement that “Copying software is illegal, regardless of whether the copied software is thereafter offered for sale, is given away free, or is retained for the copier’s own use.” Once again, LSUC – please read s. 30.6 of the Copyright Act. And have a look at http://www.download.com/ - which legally gives away - and offers up for “copying” - oodles of useful software. Copying software is simply not categorically illegal - it all depends on the circumstances.
What is wrong about all of this?
- This is another example of the cacophonous conflation of copying and piracy. And now, add ethics to the mix. Not all copying is illegal, much less piratical. Piracy is a word that should be saved for those engaged in serious commercial activity, not hard working lawyers who want to make back up copies of their essential and crash prone software. To do so in not an indictable offense, as this document seems to suggest.
- The LSUC has become the likely unwitting shill of a very powerful lobby and anti-piracy group and Microsoft itself. Let’s give the LSUC the benefit of the doubt here and assume for the moment that they don’t know better and that this was inadvertent (although that’s a scary thought for lots of other reasons relating to their immense power and resources). After all, the document didn’t originate from the LSUC. But it does bear the LSUC logo. The Federation of Law Societies of Canada might wish to explain how this document evolved.
- This is typical of the modern trend to copyright correctness that is trying to make all of us agents and copyright owners and collectives. This is why CMEC’s Copyright Matters! booklet troubles me – with its incomplete, oversimplified and even simplistic pronouncements and excessively cautious advice to teachers. This why I and others are so concerned with Captain Copyright’s obvious efforts to turn little school children into the equivalent of youth group copyright cops.
- “Ethics” is without doubt the most important aspect of being a lawyer. Our consciences and our credibility as lawyers depend on upholding the highest standards of ethics. The LSUC should be very careful about treading into ethical territory when there is no need and their research is so incomplete. This is the ultimate issue. Please, get it right or leave it alone.
From my point of view, there are indeed profound ethical issues involved on the part of those who wrongfully and deliberately mislead and misstate about copyright law, for example in a way that would deny copyright users’ their lawful rights, or assert sham claims, or misinform law makers in order to influence policy. Indeed, there are a lot of ethical issues involved with copyright law and many of them will be explored at what promises to be an excellent conference next month hosted by the University of Calgary at Banff. I will be there and presenting a paper. Stay tuned.
Lawyers are not school children. But most lawyers are also not copyright experts and the LSUC and other law societies wield immense power – obviously much more than Access Copyright and school teachers. I think that it’s wrong for law societies to disseminate incomplete and incorrect copyright information and to lay down ethical dicates based upon it. In this case, the intentions may have been honourable but the result is very unsatisfactory.