Ethical dimensions of pirating iLife 06

Since Apple announced iLife 06 it seems that every man and his dog has set about to pirate it. I’ve done some thinking about the ethical dimensions of this sudden burst of activity.

First up, some disclosure. I am a software developer. I derive my income from selling software. Piracy hurts my business and I don’t like it. But let’s be clear: piracy is not "theft" or "stealing"; it’s copyright infringement.

I actually think that copyright is a pretty good thing. And it’s not just an economic thing; not only does it help authors, programmers, musicians and other people to earn a living from what they do, it also enables things like the GPL to exist. The GPL is a copyright license and without copyright open source software as we know it today probably couldn’t exist.

Furthermore, the "fair use" provisions in the copyright law make it legal for you to do reasonable things with copyrighted works. Things like making backups, copying to different formats and the like. I think the copyright system is a fairly good one.

Digital Rights Management (DRM), on the other hand, is where things can start to get ugly. Greedy content creators want to use DRM to deprive you of your "fair use" rights. At best they make it difficult or painful to exercise those rights; at worst they make it impossible. And things don’t stop there; not only may you find yourself stripped of rights, but legislation like the DMCA makes it illegal to try and circumvent the DRM and recover those lost rights. The recent Sony "rootkit" debacle is another example of DRM gone wrong; here the DRM not only took away "fair use" rights, it actually did damage to people’s computers and put them at risk of remote compromise.

So my stance as a software developer is that I am not a big fan of piracy. I don’t really like DRM either, but I accept it as a "necessary evil". Things like the iTunes Music Store, for instance, could not exist without DRM. The Apple DRM is acceptable to me because it does not deprive me of any of my "fair use" rights. Some of my own products use a form of DRM, "product activation", but only in a way that preserves users’ fair use rights, shields them from inconvenience and which follows the "best practice" guidelines recommended by industry bodies.

And even if I weren’t a software developer I would be against piracy. I like to live an ethical life. I consider that people who make creative works have a right to stipulate conditions about how and when they should be used. You are then free to either accept or reject the conditions. In the case of software the condition is usually "don’t pirate this software", and it seems a reasonable enough stipulation; if that condition is objectionable to you then don’t use the software. By respecting that condition you encourage further development and that’s a win-win situation for you and the developer because it means the developer makes a living and you get better software. And if the condition seems overly draconian to you, you’re free to start your own version of the software and release it as open source under the GPL, thereby ensuring that your creation will always remain free.

But I think that ethical responsibility cuts both ways. I think software companies should behave ethically as well. In part that means refraining from screwing their customers (the Sony "rootkit" example). It also means making it easy for people to buy their software, and eliminating incentives to piracy. This means making copies available at reduced prices to students, or in the Third World and so forth. Set your prices fairly and don’t drive people to piracy. You’ll probably come out in front in the end thanks to the good will and loyalty that your fairness will generate.

So that’s the background, and it sheds some light on why I always take an interest when Apple makes a product announcement of this kind. The last time there was this much activity in the pirate community was probably with the release of Mac OS X Tiger (10.4). Here follow some reflections on the ethical dimensions of pirating, or not pirating, iLife 06.

iLife 06 won’t be available in my country for three weeks; I’ll buy it later

On first examination this position appears to be technically illegal but morally defensible. It is copyright infringement but if you’re going to buy it later anyway you’re really only just starting to use your "fair use" rights a little bit sooner than you should. No harm done, right?

The problem is that the most popular mechanism for distributing large files like iLife is BitTorrent, and an integral part of the BitTorrent protocol is that you don’t just download files; you assist in distributing them to others. As you download pieces of a file from other peers in the swarm your computer sends out pieces to those peers too. You upload to others while you’re downloading. As such, if you think that your decision to download iLife won’t hurt Apple then perhaps you should think again; not only are you committing copyright infringement yourself but you’re also helping others to infringe copyright too, and it’s highly likely that you are distributing the file to people who have no intention of ever paying for iLife.

Apple is forcing me to pay for .Mac; this is my revenge

There are two problems with this position. One is that it is based on a false postulate (that Apple is "forcing" the user to pay for .Mac). Apple is clearly not forcing anyone to pay for .Mac, they’re merely encouraging people to do so. iLife will work without .Mac.

The second problem takes us into the ground of moral philosophy; the claim that any kind of "revenge" is somehow morally justifiable. Almost all credible, modern religious and ethical frameworks make the opposite case. The "eye for an eye" philosophy is just so "Old Testament". Our modern judicial system is built on the notion of "just retribution" rather than "revenge", and the emphasis is much more on rehabilitation than on punishment (at least in theory).

I need iLife 06 right now

Confusion between "needing" something and merely "wanting" it doesn’t change the ethicality of piracy. It’s quite clear that the people who say they "need" iLife 06 in reality only "want" it, and that misunderstanding does not in any way change the underlying ethical (or unethical) dimensions of their conduct.

And anyway, what’s wrong with iLife 05?

I bought a new Mac in December and now Apple’s screwed me

I said above that I think software vendors should behave ethically too. By and large Apple does this: they give away lots of applications for free with every copy of Mac OS X, and they also make many of them available for free download to anybody at anytime (applications like Safari, QuickTime and of course iTunes; which is itself part of iLife); they also give away a copy of iLife with every new Mac sold.

This seems more than reasonable on their part. In short, they do very little in the way of "driving people to piracy", and they do a lot in the way of getting iLife into people’s hands for free. For those who must pay, Apple sells the product of $79 (less if you’re eligible for an educational discount); not bad for a set of applications which allows you to make near-professional quality CDs, DVDs, movies, songs, podcasts, webpages, greeting cards, calendars and much more.

But there is something that people are complaining about: those who purchased Macs just prior to the iLife 06 announcement will find that they’re stuck with iLife 05. Those who purchased after will be able to upgrade, effectively for free, via the Up-To-Date program.

So imagine if you bought a Mac on 9 January, received iLife 05, and missed out on being eligible for the Up-To-Date program by one measly day. You’d probably be quite annoyed. If you went out and pirated iLife 06 you’d be doing something illegal in the technical sense (copyright infringement) and immoral in the ethical sense (failing to respect the wishes of the author of a creative work), but there’s a moral grey area here because Apple’s decision to set the cut-off date for the Up-To-Date program at 10 January really starts to stretch the limits of "reasonableness".

Like I said above, part of being an ethical software vendor means making it easy for customers to purchase your stuff. If you’re too tough on your customers then you risk driving them towards piracy. Sure, in the end it’s the pirate and not the vendor who’s guilty of committing the infringement, but creating an environment in which piracy is much, much more likely to occur is not a good thing either. Most would agree that a much more reasonable (and therefore ethical) approach would have been to back-date the Up-To-Date program by at least 30 days and perhaps as many as 90. The end result would be less piracy, more good-will, and hopefully more long-term, loyal customers for Apple.

Yo ho, yo ho, a pirate’s life for me

This is actually one of the more respectable stances in the spectrum of possibilities. In this stance the pirate does not attempt to rationalize, justify or otherwise defend their conduct. This position can be summed at more or less as follows: "I want this software. I refuse to pay for it. I will pirate it."

Basically it boils down to a Darwinian struggle, a survival of the fittest, in which the software vendor tries to impede piracy and the pirate tries to get what he or she wants anyway. No moral reasoning or logic comes into play; it is simply a contest of wills.

The pirate does not make any appeal to special status, nor does he/she make the tautological claim that the loser of the battle (in this case Apple) somehow "deserved" to lose because it was unable to defend itself. This kind of pirate tries neither to justify the illegality of the act nor sweep the moral dimensions under the rug. As such there is an "ideological purity" in their perspective. He may be a bastard but at least he is not a hypocrite.

It is this later type of pirate which software developers will never defeat, because even if they invest thousands of hours coming up with anti-piracy technology such hard-line pirates will still attempt to crack it, and even if they fail they still won’t give in and actually purchase the software.

Conclusion

So where do I stand in all this? As I stated above, I’m a software developer and so that puts me fairly clearly in the anti-piracy camp. I’ll be getting iLife 06 most likely within the next few weeks when my iMac arrives; I think it’s unlikely that it will arrive in Spanish stores sooner than that date.

One of the reasons I felt prompted to write this article is that so many of the people clamouring to download copies of iLife 06 for free seemed to show absolutely no awareness of the ethical dimensions of their decision to pirate the software. On the contrary, they seemed mired in a petulant mixture of self-pity, fury, egoism and lack of technical understanding about how peer-to-peer protocols and systems really work. Self-pity that they were being forced to wait so long to complete the illegal acquisition of the software; fury that their "entitlement" to the software was being thwarted by factors outside their control; egoism manifested in the belief that they were someone more deserving and should therefore get the software sooner than anyone else; ignorant in their attempts at manipulating the BitTorrent protocol so as to download the software as quickly as possible while minimizing their own contribution (uploading) back to the pirate community. The ideal of "honor among thieves" seems to be all too weak in the vast majority of the pirate community; it seems that there is all too little "honor among copyright infringers", and while we’re at it, all too little intelligence as well.