Stopping Software Theft, A Futile Pursuit?

Tuesday 26 June 2012 

Whether it’s giving our latest smartphones a mere ‘bump’ against each other, or the traditional click of a button, online file-sharing today is easier than ever. With technology’s evolution not pausing for a moment of rest, new ways of sharing and accessing information are constantly being created. However, evolution does not always occur in positive directions; new methods for illegal file sharing similarly racing forward means that the legal world is desperate to keep up. The recent rising use of Copyright, Design and Patents Act 1988 section 97A shows promise in dealing with sites containing infringing information, but Julian Heathcote Hobbins, General Counsel and Deputy Chairman of FAST (Federation Against Software Theft), speaks to Law and More about why this isn’t enough. 
 
Hobbins does not dispute that section 97A is fit for its specific purpose, but the problem lies in the specificity itself. By its nature, this legislation is not widely applicable, and so can only tackle a small niche of those infringing copyright. 97A is the injunction against a service provider, where the service provider has actual knowledge of another person using their service to infringe copyright. The most notable of such situations was the Newzbin2 case in 2011, which targeted internet service provider BT. Newzbin2, a site which enabled illegal file-sharing on a grand scale, most notably illiciting access to copyrighted movie footage, was the source of the problem. Yet, lawyers argued that it was the internet service provider’s (ISP) responsibility to block access to the site. BT, the UK’s biggest ISP, was ordered to do this with an injunction granted under section 97A – however it was not long before the creators of Newzbin2 developed software to enable BT’s users to get around the block. 
 
Furthermore, the software development industry is not monopolistic, unlike so many other industries. This lack of monopolistic nature is due to the more competitive aspect of the industry, where the aim is not to make your software the only one that can be used, but the best one that can be used. It is due to this ethos that copyright is seldom enforced, incurring incessant creation and development within the software market. But with technology’s continual merciless development, it begs the question, is it possible for anti-piracy law to keep up?
 
Hobbins emphasises that it is not file-sharing technology itself that is the issue, for it can prove highly useful, for example for easy work transfer in academics. The problem arises from the files that are being shared, if they contain copyrighted material. The method section 97A uses, of not targeting the source of infringement directly, can be analogised in the form of speeding. If a car is going at 100 miles per hour when the limit is fifty, section 97A considers it the road’s responsibility to prevent a particular car to travel on it, preventing that source of illegal speeding from occurring on that particular busy road, thus reducing the places the illegal activity can occur. Hobbins states that he is quite happy with the legislation, insisting that a lot of money had been spent testing it, and the tests proved successful. Whether or not we can expect to see an increase in section 97A’s usage however; only optimism can hope and time can tell. 
 
The question will be whether section 97A proves to be cost effective, where the hassle of its pursuit for results is outweighed by the outcome. Hobbins highlights the common problem with using anti-software piracy legislation - it is often very costly.  This prompts the question of how piracy prevention can generate income; those wanting to protect their material will have to spend more than they can hope to get back. But he stresses that income generation is not the sole purpose of such legislation, it is the principle that one should always look to enforce their rights – albeit in a sensible and proportionate way.  
 
As opposed to merely remedial action, Hobbins also promotes the importance of a preventative approach. He insists that more people today need to understand the true value of digital product, when many underestimate the worth of ‘just a bit of software’. It is only when it goes wrong do people recognise its importance. This can be seen with the recent turmoil at NatWest, resulting in wages being unpaid, and customers unable to withdraw money, pay bills or use credit cards due to their system’s software failure. Hobbins branded software as the people of today’s ‘mule’, only appreciating its pivotal importance when it fails, not when it succeeds. A higher appreciation of the worth of digital product, he believes, could lead to people being more willing to obtain it via the appropriate legal methods.
 
Hobbins’ advice for readers concerned about having their personal digital product stolen is to establish and know your rights regarding your material. Then, whilst this may seem obvious, assert your copyright upon it. It is unfortunate that many often do not follow through with this due to the bothersome administration involved. For employers who are instead concerned about their employees sharing their company’s material, he suggests making your employers understand the value of the material from the start, to ensure that they think twice about anything regarding its distribution. Employers should also enforce the prohibition of its distribution in the employee’s initial contract, and ensure their awareness of this. Be proactive - constant checks on your employees can do no harm, and their awareness of your vigilance can act as a deterrent. 
 
With the multiplying demands of an increasingly expectant society, the software development industry will constantly seek to pander to our needs. But with our instinctive human nature to choose the path of least to obtain what we want, the law will have to tirelessly fight the endless battle against those who want to make this illicitly possible. 
 
Hannah Sheriff.