Anything goes, but mostly about computers, science, technology, entertainment, sports and personal issues.

Thursday, June 23, 2005

Again, Copyright Issue

In a few cities in Indonesia the authorities search and sweeps the Internet centers to check the use of pirated, illegal or unlicensed software (Kompas, 6 June 2005). Software which mostly made in USA becomes the backbone of the Internet center business, especially the operating systems which runs the computer. The Internet centers operators are mystified about the sweeping problem.

Even in Amerika, for every software without legal license (the so called EULA - End User License Agreement) found in a search by the FBI agents equals to a $100.000 fine. So for an illegal (Microsoft) Office means a maximum fine of $100.000, if there’s also illegal (Adobe) Photoshop found, then it means another fine of $100.000. Although there’s means of settlement, but surely the settlement can’t be cheap.

Surely a search with the purpose of finding illegal software is done by the Federal Authorities with permision of a judge or the court. The fine or settlement mostly comes to the agency that supervise software license like BSA (Business Software Alliances) and SIIA (Software and Information Industry Association). Hence, every successful search can be a nice incentive for those two agencies. Indeed, the salary of the president of SIIA is quite a sum, to the tune of hundreds of thousands dollars per year. Every year BSA can get millions of dollars just from settlement of fine charges from search in companies, non profit organization, even government agencies. The success of BSA and SIAA comes mostly from insider tips in the company or organization. That is due to BSA ad in American media with the slogan “Get Your Boss, Report Use of Pirated Software”.

Meanwhile, internet center operators in Indonesia are busy finding ways to survive. While some considers moving to open-source software or GPL (general public license) software. Even when it’s free, GPL has terms that must be observed by its users. It commands that every user has every right to modify, improve the software as long as the source code is made public. Access to source code is essential to the terms of use of GPL software. So the Internet center operators can freely use the GPL software and doesn’t break any law whatsoever.

The rest of intenet center operators try to buy original licensed sofware, albeit with discount plea because the price is just too costly for them, even can match the price of the computer itself. Even this still left some problems, because in the licence, or EULA, there’s an article that said that the software is not allowed to be rented, which can means renting program for accessing the internet which is done by the internet center operators. Although there are legal agreement between the association of indonesian internet center operators with one software companies (Microsoft), it still doesn’t guarantee that all commercial software in the internet centers are legally licensed for public or commercial use. Add to that the fact that the indonesian authorities still lacked even general knowledge about this subject.

In the computer industry, big commercial software companies is dominated by American companies. The biggest is indeed Microsoft, followed by (not in a certain order) Adobe, Symantec, Autodesk, Computer Associates, Novell, Oracle, Sybase, etc. One non American company which slips by on the list is German based company, SAP AG. Incredibly, all these companies never really sold their products to you, me or anyone else who used their product. They’re just basically lend, rent, (by their terms, giving or selling license) to consumers to use them in a certain strict condition.

Some certain strict conditions includes:

  • You have no right to sell, lease, or transfer the product of software (even when it’s free) without producer’s consent.
    This means the producer wants to control how you use their software. In other words, I can sell my computer to other people, but I can’t sell the software in it. Even when I can, there might be certain price fixed for the software. This is not a new idea. In early 20th century, a book producer in America attempts to sell a book with a license that said, “This book cannot be resold lower than $1”. With an average book price of $1, this license can kill the used book market instantly. Indeed the American Supreme Court bans this license and other attempts to limit the use or resale of the product for the masses. If only the license survives to this day, libraries will be illegal, and the used book store will not exist now. The Supreme Court should also ban software contracts like the EULA.
  • Consumer have athe right to use the software product in only one computer.
    This is like buying a screwdriver for screwing just one screw or buying a book which can be read by just one person.
  • Consumer have the right to make a legal copy of the software as long as the user is the same user.
    In Microsoft Office 95, consumer still permitted to make and run one copy of the software in the home or the office as long as it used by him/herself. This is just like buying a book which can be read at home or the office, as long only the same person who read it (book by nature are not easy to copy, as fast or as cheap as copying a program). But in the next versions of Office (or other Microsoft software afterwards), this kind of license vanished without a trace.
  • There’s also a per user license, ie. a license that sticks to a person not to a computer.
    A computer user or a license owner can make many copies and run in as much computer, as long as the user is him/herself. This is like buying a book which can be read anywhere, as long as only you yourself who read it.
  • Many certain software, mainly mainframe software is sold in annual basis.
    You buy a license of the software and you can’t use it again after a year. You have to rebuy or renew the license every year for its latest version, even if you’re satisfied with the old version. Imagine if book publisher impose this rule. Dictionary publisher will charge you every year. The gallery where you buy a Picasso reproduction will charge you every year for a ‘viewing fee’.
  • Once, a license of the McAfee Antivirus program prohibits the user to write a review without McAfee written consent.

In truth, the software license itself contains some problems, such as:

  • Software products should be sold or a sale transaction, not a rent or lease or licensed transaction occuring today. According to Profesor Ray Nimmer of the University of Houston, there’re difference between licensing and sales which call itself licensing, as quoted from his text called ‘The Law of Computer Technology’ page 1-103: “Ownership of a copy should be determined based on the actual character, rather than the label, of the transaction by which users obtained possesion. Merely labeling a transaction as a lease or license does not control. If a transaction involves a single payment giving the buyer an unlimited period in which it has a right to possesion, the transaction is a sale. In this situation, the buyer owns the copy regardless of the label the parties use for the contract …. The pertinent issue is whether, as in a lease, the user may be required to return the copy to the vendor after expiration of a particular period. If not, the transaction conveyed not only possession, but also transferred ownership of the copy.

    It means that when you go to a computer store to buy a legal program, paying some money for it, and taking it home, using it and never have any contact with the producer, then you’re not buying a license program, but you buy the program. Since basically a software product is not a product which has to be returned to its original owner after the end of contract period, than the software must not be sold by rent or license but in a sale transaction which is final.

In comparison with a book sales contract, imagine, if the next time you buy a book which has the following contract / rule:

“You have a LICENSE to use this book. You DO NOT buy this book. By opening this book, you AGREE with the terms of conditions. Only ONE person may read this book. Once the book is read by one person, only that person can read this book as many as he/she please, until the expired date of the contract. Under no condition this book CAN NOT be lent, sold, or given to any other party or library. untuk menggunakan buku ini. This book is sold as is, and you have no right for replacement in any kind for any product damage or defect which is not the responsibility of the publisher. This license expired 180 days after you buy this license. Once the license have expired, you must destroy this book, or you can send the book back to the publisher to help save natural resources by recycling this book medium.” (Recycling means putting it back on the rack of the book store so other people can buy, er, license or rent / lease the book)

  • All transaction between two parties must be agreed by both sides. If only one side who knows the terms of the contract, than a one sided contract has occurred, which means forced contract. The terms of contract should be known before any transaction happened, not after any transaction happened. All software today has a one sided contract, because consumer are forced to agree to the terms of the contract after transaction (or post sale disclosure terms). So consumer who open the shrink wrap of the software or inserting the program medium (like diskette, CD, DVD or any other medium) into the computer, running the installation program, and then there’s an option to agree to the terms of contract (if the contract is not agreed, the program will not be installed).

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