Tuesday, July 04, 2006

Captain Copyright's Contender

Captain Copyright now has a contender when it comes to pernicious propaganda. And it’s none other than the Law Society of Upper Canada (“LSUC”). The LSUC (and several of its other provincial counterparts) have taken it upon themselves to inform their members that software piracy is not only illegal but also unethical. For convenience, I'll refer to the LSUC - of which I am a member.

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
support staff.

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.

(emphasis added)

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.
(emphasis added)

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.



  1. Thank you for your blogs, I enjoy reading them even if I rarely post.

    "Ethics" is such an odd word to use for IP issues. It seems to imply a default position people should take, unless told otherwise.

    Microsoft, for example, is happy to tell you all about the ethics of software piracy ("making copies"), and why it’s bad. Making any copy is a violation, and they have their shiny "Genuine" system to help you find your ethics. Seems like a no-brainer. You buy software, you don't copy it. However, Microsoft does have corporate clients, and those clients get copies of Windows without the copy restrictions (one disk is permitted to make many copies on a site).

    So, copying is fine as long as you follow the license agreement of the version you buy.

    Some versions are free, even from Microsoft. They have free versions of most of their software development languages and SQL Server (the Express editions) that anyone can download, use, learn from, and create products with. It’s a substantial subset of the full packages; the Express editions are powerful tools. Microsoft also sells full versions of the same product, and those you are not permitted to redistribute.

    So, Ethics must exist differently for full versions of software compared to slightly curtailed versions.

    They give away free copies of beta trials (Testing versions), such as the Windows Vista copies in the market today. Some products are never migrated out of the “test" stage though, and it’s fine to keep using those products. It means the developers aren’t responsible for issues, and you can reproduce the product “since its not ready yet”. Once its ready, you can’t do that any more though.

    So, Ethics must be able to change over time, at the whim of one of the party’s internal product naming policies.

    Downloading is bad. Except patches from Microsoft. And freebies they put out to keep you coming back to their site. Microsoft’s own “Genuine Advantage” software is a tool to help you identify if your software is pirated, yet the only way you can get “Genuine Advantage” is to download it, and it is Microsoft Intellectual Property.

    So, Ethics don’t appear to be linked to the act of downloading. They appear to be related to the contract agreement associated with the product being downloaded. Seems like common sense, doesn’t it? So why is there so much fuss about “Downloading is illegal”? It isn't illegal, and it isn't even unethical.

    Open source software:
    Linux distributions such as Ubuntu are great software, freely available, freely distributable, freely copied, freely changeable, and create open source (non-protected) data. Where are the “ethics” involved in using this sort of software? If the Law Societies are concerned about “ethics” of piracy, why don’t they just recommend using Ubuntu (or any other source of open source software)?

    There aren’t MORE ethical issues with Open Source software, there are less, and they are easier to understand, easier to follow, and more in tune with the way in which people use software in their homes and businesses.

    Microsoft has all sorts of rules and variations of rules for Windows and Office products and how they are used and copied within an organization. “Ethics” require you to follow those rules, random as they may appear. It’s a complex process. Ubuntu frees up many of those rules since it is a community driven product.

    So, why wouldn’t the Law Societies simply recommend the “path of least ethical resistance”?

    The “ethics” of using open source products are much, much simpler than those of using Microsoft products. “Ethics” appears to be a word that lives in a particular context. Such “ethics” have little true value in my life. Microsoft (and other software developers) will talk at length on “robustness of code”, but “robustness of ethics” seems to take a back seat. Aren’t ethics meant to be robust?

    Why wouldn’t the law societies heavily promote software in which the ethical issues of their members are considerably simpler to understand, more adaptive to their law offices, and more consistent over time?

    Open Source counts on copying and word of mouth in order to market itself. Large software corporations do the opposite. They are competitors in the marketplace, and one side has large amounts of marketing/legal/lobbying funds behind it. The other side has simpler ethics associated with the use of the software.

    Steve Balmer (Microsoft) has said that the Open Source community products are the hardest to fight against. Fighting against free software is tough. One way to close the doors is to try to label people who use “copied” software as pirates. The words “You are unethical when you copy our software” become “You are unethical if you copy ANY software”. Hence, you are unethical if you use open source software, since copying it freely is the way it promotes itself.

    No one in a professional business wants to be known as a Pirate, or ethically questionable. To my mind, you are more ethical when you use products as they were intended. The rules are simpler and more open with Open Source it seems reasonable that you are more likely to be “ethical”; breaking the business rules is actually harder when the rules are simpler. There is no fear of making too many copies with Ubuntu, or having the Intellectual Property police show up at your door to see if you are using too many copies of it.

    Microsoft wants everyone to pay for each copy they install, and each upgrade, except the ones that they license in bulk, or give away freely and “ethics” will guide us the way. I am not anti-Microsoft, I think they have every right to protect their IP, in any way they wish. I own their products, I have done so for over 20 years. What I do question is their use of the word “ethics” and “piracy”, and the speed at which they apply those terms, and the veracity of their legal department in upholding their “rights”.

    The "ethics" of piracy is related purely to the license agreement, but doesn't live very well on its own. I don't trust "ethics" that are so easily modified and inconsistent even within the product line itself. It sounds a lot more like contract law to me, rather than IP law.

    Quoting from the movie The Princess Bride, "I don't think it means what you think it means". That seems to apply very well to the word Ethics as its being used to fight for/against IP laws, and seems to me to apply to the LSUC in this case.

  2. Thank you very much for your thoughtful comment.

    It does seem rather incongruous to link the notion of what is “ethical” to the intricacies of EULAs that few ever read and fewer still can understand. Most people never even get to see them – even if they might want to do so. One sometimes wonders about who writes these things and why.