E-World: Think Music Moguls Don't Like Sharing? Try Copying Software
By Lee Gomes
08/14/2000
The Wall Street Journal Europe
(Copyright (c) 2000, Dow Jones & Company, Inc.)
Napster, the system that lets its users share copyrighted songs, has attracted big-name venture capitalists and legions of supporters. But try creating an Internet site to trade computer software instead of music and you're likely to get busted by the FBI and face some serious jail time.
The recent talk about Napster, Gnutella and other "sharing" programs may lead some people to think that law-enforcement officials are getting soft on copyright infringement. In fact, just the opposite is true. Over the past few years, the software industry has convinced the U.S. Congress to treat some categories of infringement with increasingly draconian criminal penalties. Just ask Robin Rothberg of Massachusetts, who, with 16 others, was charged in federal court in the spring with conspiracy to infringe on copyrights and who faces up to five years in prison and a $250,000 fine (275,440 euros).
Mr. Rothberg is said to have headed up Pirates With Attitude, the operators of a so-called warez site, which deals in pirated software. There were about 100 other Pirates, many of them low-level grunts at big computer companies, and they used the club to exchange the sorts of computer programs that are staples on warez sites everywhere: Windows, PhotoShop, games. No one made any money from the operation.
While the pirates bragged about running the biggest, baddest warez site around -- a claim tossed back at them by federal officers -- theirs was actually just one of the hundreds, maybe thousands, of warez sites that exist, mostly for the amusement of their members. This sort of naughtiness has been around the personal-computing world from the very beginning. The very first business of Apple co-founders Steve Wozniak and Steve Jobs was selling the '70s-era "little blue boxes" that allowed people to make free long-distance phone calls.
It's a rare teenage computer buff that hasn't bragged to school chums about all the warez he downloaded the night before. In fact, it's a rare company that doesn't have some portions of its computers partitioned off for pirated software by a warez-friendly technician. There is even a warez.com Web site, which doesn't actually have copyrighted material but which can get you pointed toward places that do. Yet the software industry survives -- and in the case of Microsoft, says the government, a little too well.
The Pirates With Attitude may have been running the software equivalent of a dormitory record-taping club. But judging by the May press release issued by the U.S. Justice Department in the case, you would think they were a terrorist cell shipping plutonium to an enemy state. The release talked about the "crackers," "couriers" and "suppliers" who made up this "sophisticated network." And with "computer crime" a hot story, reporters were only too happy to pick up the potboiler theme, with one write-up describing how a "secret international cadre of computer techies" had been busted by the Federal Bureau of Investigation. The news release concluded that the bust demonstrated "the FBI's ability to investigate very sophisticated on-line criminal activity."
Maybe. But another reading is that society is having a hard time differentiating between varieties of computer crime, a useless category that includes everything from giving a friend a copy of Windows to launching a denial-of-service attack to shut down eBay. It's like prosecuting all "automobile crime" in the same heavy-handed manner, be it going just a touch over the speed limit or running down an old lady in a crosswalk.
Those charged in the Rothberg case face jail time because of recent changes in the law. Now, judges are required to consider the value of the software traded on a warez site, rather than the amount of money, if any, received by the site's operators. The change was enacted to deal with the fact that warez operators were escaping stiff penalties because they weren't profiting. So now, if 1,000 people on a warez site download a $1,000 program, it's automatically a million-dollar crime, even if no money changes hands.
In justifying the tough new law, the software industry advances a theory that every single act of software piracy is a direct theft from a software company. Common sense, though, suggests that if a 14-year old kid can't download a free copy of PhotoShop, he is just going to go without the program, rather than spend $600 to buy it.
Few people would argue that someone running a noncommercial warez site should get a medal. But jail time seems excessive when much of the world is fighting for the rights of in-your-face infringing systems like Napster and Gnutella.
The software industry says piracy is a big problem, and that it needs tough laws to send a message. Mr. Rothberg's attorney wouldn't comment. Federal prosecutors in Chicago, who directed the case against him, deferred questions to Washington, where Justice Department officials said, basically, the law is the law.
One person who did comment was Shawn Hoar, the federal prosecutor in Eugene, Oregon, who last year brought a felony copyright case against a graduate student in Oregon. So why do warez sites get busted while Napster and Gnutella get rich?
"That," said Mr. Hoar, "is an excellent question."