Do The Differences Between Software Piracy And Media Piracy Matter?
from the important-distinctions dept
Danah Boyd (or danah boyd as she prefers to be called) is widely recognized as an authority on privacy, identity and social networks. A couple of weeks ago, in the context of the fight against SOPA, she wrote a blog post where she made an interesting distinction between different kinds of piracy:
There are many different aspects of piracy, but for simplicity sake, I want to focus on two aspects that feed into bills like SOPA and PROTECT IP: piracy as a competitive issue vs. piracy as a cultural issue. This can often be split as software piracy vs. media piracy, but not always.
She then gives a concrete example:
Imagine that you are an appliance manufacturer in the United States. You make things like toasters. You are required to abide by American laws. You must pay your employees at least a minimum wage; you must follow American safety regulations. All of this raises the overhead of your production process. In addition, you must also do things like purchase your software legally. Your designers use some CAD software, which they pay for. Your accountants use accounting software, which they pay for. Sure, you’ve cut some costs by using “free” software but, by and large, you pay a decent amount of money to software companies to use the systems that they built.
Well, AutoCAD, the leading CAD software, costs a few thousand dollars; the price of accounting programs for businesses varies greatly, depending on the size of the company. But the overall cost of specialized software for the toaster company needn't be more than a few tens of thousands of dollars (using open source operating systems and office suites helps minimize generic software costs.) Since you're hoping to get your toasters into Wal-Mart, out of necessity you have high-volume production runs (if you don't, then you're a boutique toaster company, and you can charge premium prices.) That means the extra cost due to software licensing per toaster will be a few cents.
You really want to get your toasters into Wal-Mart, but time and time again, you find yourself undercut by competitors in foreign countries where the safety laws are more lax, the minimum wage laws are nonexistent, and where companies aren’t punished for stealing software. Are you grouchy? Of course you are. Needless to say, you see this as an unfair competition issue. There aren’t legal ways of bending the market to create fair competition. You can’t innovate your way out of this dilemma and so you want Congress to step in and make sure that you can compete fairly.
Moreover, as that first paragraph quoted above makes clear, the key factor of the "unfair" competition is the radically different cost of manufacturing in countries where wages are lower, and health and environmental standards are less rigorous and hence less costly to implement. These will make far more difference to the costs than the possible use of pirated software, especially at Wal-Mart scales.
As a result, the logic behind the opening claim of this paragraph in the post seems dubious:
Combating software piracy in the supply chain is a reasonable request and part of what makes bills like PROTECT IP messy is that there’s a kernel of this issue in these bills. Bills like this are also meant to go after counterfeit products. Most folks really want to know what’s in baby formula or what’s in the medicines they purchase. Unfortunately, though, these aspects of piracy quickly gets muddled with cultural facets of piracy, particularly once the media industries have gotten involved.
The second part is absolutely spot-on, though: people rightly want to know that the medicines and foodstuffs they buy are safe. That means there is a genuine case for legislation that helps protect consumers against such health and safety dangers. But that's about combating counterfeits, not fighting digital piracy, much less software piracy. And that's the crucial distinction: not between software piracy and media piracy, but between digital piracy and analog counterfeits.
It's important not to blur that difference, as the last sentence of the above paragraph seems to do. After all, that's precisely the trick the ACTA negotiators used to bring in disproportionate punishments for digital piracy -- by confounding it with counterfeiting that endangered the public's health.