So long and thanks for all the fish

[Jimbo]

I think these past two posts illustrate the difference in our opinions perfectly.

There's the opinion that software is intangible, that it's not property. I disagree. If someone illegally copies my software and distributes it for free then that person has stolen something quite tangible and real.

Napster was quite different. Napster was merely a file trading software application. How people used Napster was the problem. It's like the saying, "Guns don't kill people, people kill people." And I believe that. You can't hold a developer of a tool responsible for how people use or misuse that tool. I believe Robin's case was much different. He knowingly collected other people's property for mass dissemination over the Internet. Isn't there a huge difference there?

Let's say someone steals a software application that my company spent time and effort to develop. Let's also say that this application costs $500. Now let's suppose that someone takes this application and knowingly places it on a server somewhere with the express intent to freely distribute it, and in fact 100 people download it and use it and another 100 use it and discard it or actually buy it. I frankly do not see the difference between that and if someone simply stole $50K worth of cash from me.

Again, I fail to see the distinction of whether or not this person profited from their efforts or not, or whether or not they intended to do harm. If I'm out $50K what is the difference? Damage and theft have been done. The end result is that 101 people illegally obtained something of value and did not pay for it.

Your analogy of Robin breaking into a store is an apt one. What is the difference here? That's essentially what he did. Just because he "broke in" and accomplished his tasks using the Internet shouldn't matter. I also read your plaigerism argument and I don't see where it's MORE abhorrent than the outright theft. And in the cases of plaigerism, stolen music, etc, there's generally two parties arguing over disputed material.

In this case, the theft likely involved hundreds of parties and developers who's property was stolen. I think some consideration has to be given for the scale of the operation.

In fact, one of the posters here even recognized Robin's efforts and lauded him for having one of his favorite "utility sites." And it's posts like that which caused me to post this other viewpoint.

Our current laws obviously provide a remedy for this and in some extreme cases, jail time can be involved. This sounds to me like a large, organized operation that was open and blatant about their illegal activities and I think the scope and audacity of such an operation should also be taken into account.

Certainly the laws can be changed so that jail time can never be an option for such crimes and if enough people think this should be done then it often happens. I think it's certainly reasonable to have that deterrent available for such crimes.

I may have offered my opinions and challenged a few of you with different viewpoints, but I believe I've always offered a basis and a rationale for my viewpoints. I don't think I've been mindless, baseless in any way.

This is just about sharing opinions and viewpoints and if you disagree, well, that's cool and it's what makes our country great.

Regards,
Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[Michigan NSX]

Jimbo,

If you re-read my post carefully (not mindlessly

) you will see that I only thought your "car theft" ANALOGY was flawed - not your argument on the legality of the software issue.

I also said that MOST PEOPLE would think it is a victimless crime (I do not!). I was trying to explain why most had this opinion. I was NOT trying to defend their position. Jimbo, I don't think we have much of a difference of opinion at all.

------------------
'91 Black/Black

 

[Jimbo]

Michigan,

I did read your post carefully.

And perhaps we do agree.

Granted if someone steals my software I still kind of have it. But...What I don't have is the customer who WOULD have purchased it.

Software is weird in that you can keep making exact duplicates but that shouldn't mean that the owner shouldn't have the right to sell each and every copy as they see fit.

Let's look at it another way. Let's say I own a solar powered ice making machine (and let's assume that the water is free). My business is selling ice. If someone steals my ice, I can certainly make more at no cost but haven't I still be damaged? Let's take this analogy further.

Let's also say that someone steals my ice and sets up a stand in town where he proceeds to give away my ice for free. Now a few of my customers know about this and think it's wrong and they continue to buy the ice from me, but many customers and potential customers just line up to get the free ice.

Perhaps this is a better analogy to show that the loss is real.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[Michigan NSX]

Jim,

I believe you may be falling into a trap that other manufacturers (and especially the music industry) make. It is sometimes hard to see the big picture when you are such an intimate player in the game. Of the 200 hypothetical "users" you mentioned in your post above, you can't assume they would all have purchased the software. Many would only use the software BECAUSE it is free. You wouldn't be out $50k (you might only be out $2k !)

Again, I am not saying that this should be OK - it is not. Theft is theft. But you can't assume EVERY pirated copy represents a lost sale - it doesn't.
------------------
'91 Black/Black

[This message has been edited by Michigan NSX (edited 05 September 2002).]

[This message has been edited by Michigan NSX (edited 05 September 2002).]

 

[Jimbo]

Michigan,

I don't think I'm ignoring that every pirated copy would be a sale.

In fact in my previous-previous post I cited and acknowledged that out of 200 people total, that 100 people might go on to purchase the software or discard it. I clearly stated that every stolen copy did not necessarily represent a sale.

Just because some people would use my software BECAUSE it was free and would have not purchased it otherwise, I think that's besides the point.

But what difference does that make to the software developer? Why is this important? Perhaps only 25% of the people would have bought my software and the remaining 75% only used it because it was free. It only really matters in determining the scope of the potential loss. It also depends on how good my software is and what it's priced at. There's no real way one can accurately determine this. But you're correct, I might "ONLY" be out $2K and not $50K. Or I might only be out $1M and not $5M.

I do agree with this, but I'm not sure what the point is? You said that "theft is theft" so why would it matter if my losses were based on the utility of the stolen product to the thief?

For example, let's use the ice analogy. Let's say that half of the people who knowingly lined up to get illegal ice at my expense, really didn't need the ice and in fact the let it melt on the ride home. To me, that fact doesn't diminish the fact that a theft still occurred. Just because this person let the ice melt doesn't make them any less of a thief than the person who put the ice into their ice tea. Doesn't this make sense?

I do realize that some people after using stolen software might be swayed to eventually purchase it too. So I do realize that it's paradoxical. But then again, it goes back to the rights of the owners. They alone should be able to determine who has access to their property. If they want to give out free copies in an attempt to eventually boost sales it should only be up to them.

-Jim



------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[Michigan NSX]

It only really matters in determining the scope of the potential loss. It also depends on how good my software is and what it's priced at. There's no real way one can accurately determine this. But you're correct, I might "ONLY" be out $2K and not $50K. Or I might only be out $1M and not $5M.

Correct, exactly my point.! I was not trying to say "it's no big deal" (it is). I was just trying to say don't overestimate the loss.

By the way, I don't need any ice (unless it's free (and not stolen))

------------------
'91 Black/Black

[This message has been edited by Michigan NSX (edited 05 September 2002).]

[This message has been edited by Michigan NSX (edited 05 September 2002).]

 

[H-carWizKid]

Originally posted by Jimbo:
I think these past two posts illustrate the difference in our opinions perfectly.


Let's say someone steals a software application that my company spent time and effort to develop. Let's also say that this application costs $500. Now let's suppose that someone takes this application and knowingly places it on a server somewhere with the express intent to freely distribute it, and in fact 100 people download it and use it and another 100 use it and discard it or actually buy it. I frankly do not see the difference between that and if someone simply stole $50K worth of cash from me.

So why not force the criminal to recoup your $50k? You get your lost earnings, he gets punished. He is forced to pay for what he gave away... The punishment fits the crime.

Reality dictates that Robin will instead be incarcerated (no matter how Country Club like his accomodations are by comparison to a Federal Pen). Now we all get to pay for his crime, and he pays in Time served.

What did you (the victim) recoup in that scenario? I think it is called : zero, NADA, nothing, zippo, zilch.

Yes software theft, and theft of intellectual property is a crime, I feel that the issue is how we punish people for it.

Publishing that a software pirate was subject to a huge financial garnishment would be just as effective a deterent as publishing that they got a year and a half of jail time, in a low security facility no less.

That is my point, I agree that software theft is indeed a punishable crime, I just disagree with the punitive action.

I also think that the exsistance of "shareware", and internet freebies as a marketing tool for software corporations has warped peoples perception of the value of software.

If the maker is willing to give out moded versions of their software away (ie: old versions of RealPlayer) why should I ever buy it?
This attitude quickly becomes: HEY! I can get the new version for free too... cool.

That reality has led to widespread piracy becoming socially acceptable. IMO

Phil

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[This message has been edited by H-carWizKid (edited 05 September 2002).]

[This message has been edited by H-carWizKid (edited 05 September 2002).]

 

[anvil]

Jimbo, you might, pardon the pun, be skating on thin ice here.

If the ice cost you nothing to produce, and the person taking the ice for free did not want it and subsequently discarded it, then you were out nothing at all since you did not lose a potential sale or incur any production costs for the actual pieces of ice received. So what loss from theft occurred and from whom? Convicting a person for theft in this case sounds more like you are convicting them for a possible willingness to steal rather than for an actual theft ("possible" because conceivably, if the person taking the ice is a friend of the person who offered it, they took it only to avoid embarrassing their friend and they may have recognized that the ice had no material value in and of itself, so that they may not have actually had even a willingness to steal).

Have I missed something in your reasoning? And if not, would you really want to prosecute folks for having a larcenous (sp?) tendency even though they have not actually taken a thing of value from anyone?

anvil

 

[Jimbo]

H-CarWiz,

I have no problem with forcing the criminal to repay the $50K, but like it or not, jail time for certain kinds of egregious theft is part of our legal system.

And I do believe that the severity of the crime should play a part. A kid steals a 50 cent candy bar is much different that the organized, systematic and blatant software theft that we're talking about here. The possible, tangible loss could well be in the millions of dollars. Perhaps Robin and his partners would have been unable to repay the loss?

And furthermore, if the only risk and downside to the thief is that if he gets caught he has to pay back the money, well, I think that's frankly unacceptable.

There has to be a penalty beyond mere repayment. But we can disagree and that's fine. I think.

Anvil,

I believe you're absolutely wrong legally and ethically on this matter. I'm really amazed that you would think that just because someone's product had a zero hard cost associated with it, that the theft of that product is any less a theft.

In the case of the ice, there was a theft of my product and my service. Just because my cost of goods was nil, it doesn't and shouldn't matter one bit. If that's you're argument then all software is fair game, just as long as you steal from a medium that doesn't have a cost (like a CD).

People's time has value. What about someone who visits a psychologist and walks out without paying? They received some tangible value and that person who provided that value should be compensated in exchange.

Do you REALLY think that it's OK to steal from a company just because their service and/or product didn't have a hard cost associated with it?

Do we really want a society where the theft of other people's belongings is based on what that person paid for them?

Whether it's ice, counseling or a spreadsheet program, I just don't see the difference what "production costs" have to do with it at all.

Gee, I guess I'm all alone on this one and it's been a real eye-opener for me. I honestly didn't think, or would have believed, that I would have had to go through this in order to have my point accepted. I am surprised.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

[This message has been edited by Jimbo (edited 05 September 2002).]

 

[huckster]

this all comes down to the core foundation of our legal system. intent, harm done, and punishment.

intent appears questionable, as it usually is hard to prove either way. however, we do know that the motive was not financial profit, which would normally weigh heavily in a case like this.

harm done--obviously the control of the software was lost by the rightful owners, so harm was done though it would be hard to say what financial losses actually occured.

punishment--jail time for free distribution of software has never occured before. the punishment looks capricious and arbitrary, at the very least it is certainly precedent setting. WHY the feds picked this case to be the precedent setter looks very suspect. it appears to be a situation where they could make a point with a small group who could easily be hammered, much more easily than the other bigger violaters that ive read about.

so imo it all comes down to the nature of the crime vs the punishment doled out.

i do not think software theft is a victimless crime. HOWEVER, it can be a much different crime than stealing someones tangible posession. this is where i disagree with your argument jimbo.

if someone walked into your office and physically deprived you of software sitting on your desk i can guarantee you that you will feel different than if someone distributes your software over the internet. that is why our system has always treated 'intellectual theft' in any of its forms much differently than the theft of an object. when someone steals an object, there is the very real possibility that someone else will physically be hurt, or worse. by the way, what you would lose in a physical theft is much more than what you lose in software piracy. it is a completely different sort of violation, in every sense of that word, and our system has always had the wisdom to realize that. (or maybe until now)

 

[huckster]

by the way, jimbo. as a self-proclaimed marketing guy, i should tell you that many companies have realized the value of developing a need for and dependence on a product before they start charging for it. give the initial idea/software for free and then start charging for improvements/upgrades to the product.

you should hope that your software was/is involved in a high profile case where your product was 'stolen'. the press generated would be invaluable to your business.

 

[anvil]

Jimbo,

Please don't keep jumping to the conclusion that if someone asks you to clarify a point that it is part of a debating plan and is the occasion to attack their ethics. Please consider how many times that I have impuned *your* character in this discussion.

You raised an interesting question I thought, I just wanted to know how explicitly you wished to characterize an action where nothing of value was taken.

I also referred to Webster's ( software version, ... and properly purchased, by the way

)for some edification about theft:

"theft is the general term and larceny the legal term for the unlawful or felonious taking away of another‘s property without his or her consent and with the intention of depriving the person of it"

The question was intended to determine what "property" the ice producing person was being "deprived of" if the commodity thrown away (the ice) had no value. If the producer is deprived of neither a sale nor an actual product of value, then what "property" is the producer deprived of?

I hope this can be seen as a fair question and not a point of debate. Perhaps there are legal definitions of theft that are quite different, but I don't keep law books around so fill free to educate me.

anvil

 

[Jimbo]

Huckster,

I'm not a lawyer, but I'm sure there many cases where malicious intent is not a prerequisite for a guilty verdict.

If someone steals something just for the hell of it they are just as guilty. And obviously the lack of a financial motive shouldn't and didn't mean anything in this case. And I'm not sure I would agree that there was no financial gain. Although these people didn't charge for their "service" they certainly had something to gain from their theft.

I don't believe that this the first and only time someone has received jail time for this kind of crime. It's happened numerous times and the laws are getting more strict and severe...and not only in the US...

http://www.cybercrime.gov/pwa_verdict.htm

http://www.cybercrime.gov/iplaws.htm

http://news.zdnet.co.uk/story/0,,t269-s2108386,00.html

http://www.asian-licensing.com/ALP%20Web/Articles/scmp_11800.htm

http://www.cybercrimelawyer.com/pages/softwarepiracy.html

I don't believe it's as capricious, arbitrary or suspect at all. Something has to be done about this problem.

http://www.cybercrime.gov/pirates.htm

After reading this document once again, I'm convinced this is not a simple case of someone distributing a program here or there. This was a vast enterprise of international crime and I do not think that 15-18 months is capricious, arbitrary or suspect.

Bigger violators? Well, this was pretty damn big in my book.

-Jim



------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[Jimbo]

Anvil,

Hey guy, I don't even know you and I'm certainly not saying you're unethical nor have I inpuned your character. We're having a hypothetical discussion and I just don't think you're right about this particular issue, that's all.

In the question of the ice, which is indeed a fair question, I think you're wrong when you say that the commodity (the ice) had no value.

In fact, the very definition of the word, commodity, means a product that is sold purely by price. The stolen ice does indeed have value.

I tried to use the solar-powered ice machine as a better analogy to software. Here's a machine that creates a substance/product that has a definite value but with little or no cost to produce the goods. I thought that was similar to software.

If I'm an ice vendor, my product does have value. People buy ice all the time. My point was that the thief could hardly use as a defense that my ice cost me nothing to make and therefore was fair game to be stolen.

All I was trying to show was that fallacy of the logic that uses the argument that because software costs nothing to make or copy that no theft or damage has been done.

So, getting back to my ice machine analogy....

I produce ice. I've invested in a machine to make the ice, I've invested in a place to sell my ice, I pay to advertise my ice, I pay taxes, etc...

Now some thief comes along and steals my ice. He starts to give it away for free in a local parking lot.

I file a police complaint because this joker stole my ice and is hurting my business.

Don't you see where I would have a valid case?

Does it really matter that my ice didn't have hard cost of goods to make? Aren't I still being harmed?

Does it really matter that this guy is giving my ice for free? Would it matter if he made a bit of a profit?

I don't think so.

-Jim

------------------
1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[H-carWizKid]

Originally posted by anvil:
Jimbo,

Please don't keep jumping to the conclusion that if someone asks you to clarify a point that it is part of a debating plan and is the occasion to attack their ethics.
anvil

Actually, questioning finer points through requests for clarification is a proven method of debate. Socratic method.

I just wanted to toss that in to help you understand why you got the reaction you did.

Take care all.

Phil

P.S. The title of this thread is derived from the title of Douglas Adams fourth book in the series "A Hitchhikers Guide To the Galaxy". Just in case you were curious.

------------------

[This message has been edited by H-carWizKid (edited 05 September 2002).]

 

[anvil]

Jimbo,

Thank you for saying that I *may* not be unethical and that my character *may* be redeemable. I do feel better now.

I agree that the ice is a little bit of a bad fit to the software issue, and I am not trying to worry about the details of ice verses software.

I absolutely agree that the person taking the ice (software) originally has committed a theft of your property even if the ice (software) is given away. You incur a clear loss, assuming some potential customers took free ice as earlier posts discussed. You may even claim that the people wanting the free ice (software), knowing it is stolen have deprived you of potential sales (accepting also the idea that some percentage of them would have gone on to purchase software if they had not gotten it free).

What I was wondering about ( the "thin ice" I was referring too) was that group of people that received ice (software) and discarded it. I can't imagine why they would want it in the first case, but that was your premise, so if I accept that they took it for some reason only to discard it, they did not deprive you of a possible sale, and if the production of the ice (software copy) cost you nothing there was no production cost. You said "Just because this person let the ice melt (*My paraphrase: 'discarded the software'*)doesn't make them any less of a thief than the person who put the ice into their ice tea (*My paraphrase: 'used the software'*)."

I see where everyone else deprived you of "property" of some value to you and you may justly claim some sort of "theft" in the sense of the definition I quoted, with the magnitude of the loss clearly different for the original thief (the "robin" of this thread) than the guy that walks away chewing on a single ice cube (single software copy). And surely the law would differentiate between these thefts.

What I am uncertain of is would the law consider it a "theft" for those that discarded the software. Would there not have to be some "loss", perhaps even a significant one, for the law to intervene and brand the culprit a "thief"?

I am not claiming to know how the law judges, I am asking the question.

As I said, I think that is an interesting question. If I had been asked it, I would have said that something of value must have been taken, but perhaps I am wrong. If I am, I will be very careful not to pick up a colorful leaf from the neighbor's lawn this fall when I walk down the sidewalk.

anvil

 

[anvil]

Phil,

Busted again, darn it!

But it is also a part of any dialogue.

anvil

 

[nsxtasy]

Originally posted by anvil:
[Edited by anvil: I have removed a response to a statement I thought I had seen posted by Jimbo. Since I no longer see such a comment by Jimbo in the posts above I can only conclude that I need to go back on medication.]

You’re not imagining things. Lud has removed some of the personal attacks that had previously been posted as part of this discussion.

However, that doesn’t mean that you don’t need to go back on medication.

Originally posted by H-carWizKid:
Yes software theft, and theft of intellectual property is a crime, I feel that the issue is how we punish people for it.

Yes – that is exactly the issue that we seem to be disagreeing about. Despite Jimbo’s ridiculous hyperbole such as

Originally posted by Jimbo:
This thread simply tells me that there are more people out there who use illegal software than there are software developers.

and

Originally posted by Jimbo:
Gee, I guess I'm all alone on this one and it's been a real eye-opener for me. I honestly didn't think, or would have believed, that I would have had to go through this in order to have my point accepted. I am surprised.

the fact of the matter is, most of us believe that software is an asset; that unauthorized distribution of software to others constitutes theft of that asset; and that such theft should be punished. Most of us agree on all of this, I believe. And since we do, I really don’t think it is necessary to make sweeping generalizations that are patently false. Nor should it be necessary to resort to hypothetical ice salesmen, when the actual situation ought to suffice for purposes of discussion.

So then, the question then becomes only a matter of what punishment is appropriate. Exactly as Phil notes.

I am not a lawyer. However, I am sure that the legal system has a methodology by which typical sentences are determined. This methodology includes a determination of what circumstances are harsher and merit a more severe penalty, within the generally broad range of penalties that can be assessed for a particular offense (as well as the generally broad range of charges that can be brought).

Some here have claimed that crimes against persons are not dealt with as harshly as crimes against property. I would be willing to bet that that is not always the case. Will the person who defrauds little old ladies of their life savings get a much milder sentence than the one who assaults someone in a bar fight? I don’t know if this particular example serves to prove the point… but I am sure that there are some property crimes that are generally given stiffer sentences than some crimes against people. One is not always considered more severe than the other. Jimbo points this out when he states, ”I've heard of cases where the kingpins of auto theft rings and chop shops have gotten serious jail time.” And rightly so.

Similarly, despite Jimbo’s claims that this should not be the case, the amount of harm is indeed taken into account in deciding on an appropriate punishment. I would bet that anyone caught swiping a candy bar at your local convenience store would be given a lesser charge, and lesser punishment, than the same person swiping a Rolex watch at a jewelry store. Are they different in concept? No; they are both examples of theft. But, as huckster notes and Marci A. Hamilton, a specialist in copyright law at the Benjamin N. Cardozo School of Law at Yeshiva University, confirms, the “amount of harm” is taken into account in determining the charges and sentence. You may not like it, but this is true within our criminal justice system.

Some here have drawn a distinction between fines and jail time, and that is certainly one distinction in determining appropriate punishment. But even there, I don’t think our judicial system says that a lesser crime ALWAYS means fines rather than jail time, or that fines are necessarily a lesser punishment. If you were faced with a choice between a week in jail or a fine of $500,000, which would you choose? Which would you consider a more severe punishment? Again, the answers are not as cut and dried as some might claim them to be. But regardless of which one you might consider more severe, at a minimum it means that those arguing for fines rather than jail time are not necessarily advocating a more lenient punishment; in fact, it might be much harsher, depending on the level of the fine.

Some of us, including huckster and myself, are arguing that there are “typical” punishments for a given crime and set of circumstances. erobbins himself notes that if you are caught smoking marijuana in Washington Square Park in New York City, you will receive an appearance summons that is treated similarly to a traffic ticket, and that you will receive serious charges in Jersey City. A given crime, with a given set of circumstances, is likely to be dealt with according to the methodology of the criminal justice system in which it is adjudicated. If 100 people are charged with smoking marijuana in New York, chances are that at least 90 and maybe (hopefully) more will receive approximately the same treatment by the system. Some will have specific circumstances that might account for different treatment – juvenile status, mental incompetency, a record as a repeat offender, help in prosecuting other cases – but aside from variations to take into account those differing circumstances, you have a pretty good idea of how the system is likely to deal with a given offense and set of circumstances.

When someone’s punishment falls outside of those norms, I believe this is objectionable. And, in Robin’s case, the experts in copyright law are stating flat-out that the sentence he received is inappropriate because it falls WAY outside of those norms. These experts include the previously-mentioned Marci A. Hamilton of Yeshiva University; Miriam Nisbet, legislative counsel with the American Library Association, which often testifies on copyright issues; and Lois Jacobson, chief executive of MIS Training Institute, a Framingham, Mass., security operation. They don’t state exactly what penalty would be considered appropriate – whether it would consist of a much shorter prison term, or a fine, or some combination – but they are very clear that the penalty Rob received was way outside of what is normally assessed under his particular set of circumstances, and that the system of copyright law is not well served in doing so. While Jimbo may claim that “I don't believe it's as capricious, arbitrary or suspect at all”, the fact of the matter is that, AFAIK, he is not an expert in copyright law – in fact, not a lawyer at all – and does not have the qualifications in this field that Mmes. Hamilton, Nisbet, and Jacobson do. Neither do I – but, without such expertise, I can only agree with the opinion of those who do have such expertise, rather than an individual who simply doesn’t like the conclusions they reach in applying their vast experience in the field.

Where I am going with all of this? It is only to note that (a) there is not the level of disagreement among us that some claim that there is, and in fact most of us recognize the nature of the property rights inherent in computer software; (b) while we might disagree on what punishment each of us might feel is appropriate for Rob’s case, we can recognize that there are established norms in the criminal justice system and, according to the experts, his sentence lies well outside these norms; and (c) perhaps we can also all agree that a judicial system which is consistent in its treatment of a particular offense and set of circumstances will give much more desirable results in general deterrence, and it will serve notions of justice and fairness much better, than a system in which some people receive punishment that is far harsher than almost all others under similar circumstances. Perhaps we can take a step back to recognize just how much we really do agree upon, as well as the complexity of the situation and the multitude of factors that need to be taken into account in determining what punishment is most appropriate and serves our society best. I hope none of us is so dogmatic to think that he knows all the answers or that the discussion is well served by continually objecting and picking apart the statements that others make.

Originally posted by H-carWizKid:
P.S. The title of this thread is derived from the title of Douglas Adams fourth book in the series "A Hitchhikers Guide To the Galaxy". Just in case you were curious.

As I noted, I had been wondering about that. Thanks for clearing up the mystery, Phil.

 

[erobbins]

Originally posted by Michigan NSX:
Of the 200 hypothetical "users" you mentioned in your post above, you can't assume they would all have purchased the software. Many would only use the software BECAUSE it is free. You wouldn't be out $50k (you might only be out $2k !)

You're absolutely correct. But, if everyone who used the software actually paid for it, the price per unit could be dropped while still providing the developer an adequate margin. At the lower price point, the same software provides a stronger value proposition, which will result in more purchasers.

Wouldn't it be nice if we could buy Adobe Photoshop for $50? I'm willing to bet that outside the corporate world, 90% of Photoshop installations are unlicensed. Why? Likely because Photoshop retails for $700. I think nothing of paying $50 for a software title, be it for a PC or a game console. But for $700, I tend to find other alternatives which provide the utility or entertainment value I desire.

EDR

 

[erobbins]

Originally posted by anvil:
If the ice cost you nothing to produce...then you were out nothing at all since you did not lose a potential sale or incur any production costs for the actual pieces of ice received. So what loss from theft occurred and from whom?

See, now we're starting to get into the economics of the software business, which are quite different from other industries. It's a lot like prostitution... you can sell your product, but still have it to sell to someone else with no additional production cost. But, that is the key - no additional production costs. There is still an initial R&D investment made in the product, which can be substantial as compared to the sales price for the product.

In a company like Microsoft's case, they may need to sell millions of copies of a product to recoup their R&D costs, cover the publishing and distribution expenses, and also provide an adequate margin to fund continuing business. In the case of a company like I am intimately familiar with (enterprise supply/value chain management software), it may only take a single sale to cover all the R&D costs... every subsequent sale is "gravy".

In the case of the ice, there is a "cost" involved, even if the water is free. There is the cost of covering the R&D and operating costs of the machine that makes the ice. If you choose to let the ice melt in your car on the way home, then maybe the original seller of the ice should consider an add-on product like styrofoam coolers.

EDR

 

[erobbins]

Originally posted by H-carWizKid:
I also think that the exsistance of "shareware", and internet freebies as a marketing tool for software corporations has warped peoples perception of the value of software.

I agree, although it doesn't really affect the portion of the software business I know best. There aren't exactly shareware versions of demand, manufacturing and logistics products available.

What I think a good solution for a great majority of software products is to provide "freeware" or deeply discounted versions for personal use, and higher priced versions for corporate use (where most software revenues come from). But, then there is the problem of policing whether or not corporate customers are using the properly licensed versions. However, this is not any different than policing licensed versus unlicensed software as it exists now.

Rhetorical question: how many home (and corporate users) have purchased WinZIP, when the "eval" version is available for free? A time-based trial version would be a better solution for them.

EDR

 

[erobbins]

Originally posted by huckster:
this all comes down to the core foundation of our legal system. intent, harm done, and punishment.

intent appears questionable, as it usually is hard to prove either way. however, we do know that the motive was not financial profit, which would normally weigh heavily in a case like this.

Intent does not always have to be a necessary component of the commission of a crime or civil tort.

I could list numerous examples, but it would likely set us off on a tangent.

EDR

 

[Jimbo]

Anvil,

I don't think I ever said/wrote that you *may" not be unethical or that your character "may* be redeemable. I have no idea or opinions about that.

On the question of those who discarded the software, I agree it's a gray area. Did they use it for some purpose and then discard it? In the case of the PWA, this certainly wasn't an issue. Their organized theft was so broad and extensive that I think whether or not a small percentage of downloaders discarded their warez is besides the point.

With respect to my "ridiculous hyperbole" such as...

"...there are more people who use illegal software than there are software developers."

I actually believe this is a reasonable statement and it's most probably true. The estimates of the numbers of people who use illegal software is very high. Some studies place the numbers as high as 30% of all business users.

http://www.siia.net/sharedcontent/press/2001/11-7-01.html

Even the most modest studies place the numbers of people using illegal software well into the millions. Certainly, by any accounts my statement is not "ridiculous" or "hyperbole."

I've also never said that the amount of harm shouldn't be taken into account when deciding punishment. That is simply ridiculous hyperbole!

There has been a recent effort to crack down on this type of crime and therefore, what's "typical" has evolved considerably over the past 10 years. With this new NET (no electronic theft) Act what's typical is starting to change. And therefore when new laws and enforcement policies are enacted, it makes it difficult, if not impossible to define what the "norms" are.

As I already said, I'm not a lawyer. Of course, Ken has no idea whether or not I'm an expert in copyright law or not. He can cite the various opinions of Hamilton, Nisbet and Jacobson, but I'm confident that the US Dept of Justice, the FBI, the Canadian Gov't, the Royal Canadian Mounted Police could also provide many experts who could provide a different opinion.

http://www.cybercrime.gov/pirates.htm

In any event, I'm certainly reassured that the pendulum is finally swinging in what I feel is the right direction. The 'norms' are changing and what was appropriate years ago is no longer the case.

And finally, it's SO refreshing to know that "nsxtasy" doesn't object and pick apart the statements that others make.

-Jim


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1992 NSX Red/Blk 5 spd #0330
1991 NSX Blk/Blk Auto #3070 (Sold)
1974 Vette 454 4 spd Wht/Blk
http://homepage.mac.com/jimanders/PhotoAlbum1.html

 

[erobbins]

Originally posted by huckster:
by the way, jimbo. as a self-proclaimed marketing guy, i should tell you that many companies have realized the value of developing a need for and dependence on a product before they start charging for it. give the initial idea/software for free and then start charging for improvements/upgrades to the product.

Great way to piss off your installed user base and give them a reason to find an alternative, even at a higher price than what you want. Trust me - these tactics in software, online services or other business will ultimately result in decreased revenues over time. If your product or service has value, people will be willing to pay for it up front if it is priced properly based on the value it delivers.

you should hope that your software was/is involved in a high profile case where your product was 'stolen'. the press generated would be invaluable to your business.

You have a really warped view of public relations and what a successful marketing strategy are. Do you work for Yahoo or MSN/Hotmail or something?

EDR

 

[nsxtasy]

Originally posted by Jimbo:
With respect to my "ridiculous hyperbole" such as...

"...there are more people who use illegal software than there are software developers."

I actually believe this is a reasonable statement and it's most probably true.

Uhhh... no, Jimbo. You can't weasel out of this one by all of the sudden claiming that it was a statement about the entire industry. Let's look at your complete statement, instead of your self-serving excerpt. This is what you really said:

"This thread simply tells me that there are more people out there who use illegal software than there are software developers."

In other words - this is NOT a conclusion that you had come to based on knowledge of the software industry in general. This is a conclusion that you came to based on THIS THREAD. The only interpretation I can make of such a statement is that you are accusing the participants in this thread of using illegal software. And THAT'S why it's ridiculous hyperbole - because the participants in this thread overwhelmingly support the proprietary rights inherent in the legitimate software licenses, which shows your snide insinuation to be false.

Originally posted by Jimbo:
As I already said, I'm not a lawyer. Of course, Ken has no idea whether or not I'm an expert in copyright law or not. He can cite the various opinions of Hamilton, Nisbet and Jacobson, but I'm confident that the US Dept of Justice, the FBI, the Canadian Gov't, the Royal Canadian Mounted Police could also provide many experts who could provide a different opinion.

Of course they could - but they represent one side of the legal system. I'm sure the defendants, too, could also provide many experts who could provide a different opinion for the other side. But Mss. Hamilton and Jacobson are unbiased experts who do not represent the prosecution or the defense in this matter, and (unlike those who work for software firms, or those who copy unauthorized software) have no financial stake in the decisions being made. Furthermore, Ms. Nisbet usually supports the prosecution in the enforcement of copyright law, yet she too feels that the sentences handed down are inappropriate. That is a huge difference from saying that you can find experts willing to testify on behalf of the prosecution.

Originally posted by nsxtasy:
Perhaps we can take a step back to recognize just how much we really do agree upon, as well as the complexity of the situation and the multitude of factors that need to be taken into account in determining what punishment is most appropriate and serves our society best.

Obviously, I was mistaken in supposing that Jimbo could ever take a step back from ANY argument and recognize agreement, let alone admit that a situation may be complex or that others may have legitimate points of view. I apologize for the error.

[This message has been edited by nsxtasy (edited 06 September 2002).]