Gervase Markham, one of Mozilla Foundation’s total of three employees world-wide, wrote recently in the London Times of his run-in with a Trading Standards Officer who had all-but accused him of ending capitalism and bringing down the western world. The civil servant, whose job is to ensure that traders are not cheating customers or selling counterfeit goods, contacted Gervase prior to taking action against a dealer they had “caught” trying to sell CDs containing Firefox. They did not like to hear what Gervase had to say.

The principles behind Copyleft (as opposed to Copyright) software such as Firefox were explained to the officer—that it is free and anyone can copy it and sell the media it is on. Gervase advised that any confiscated CDs should be returned. The Trading Standards officer responded incredulously that by making software free it became an impossible job to enforce anti-piracy legislation or to give advice to businesses over what is and isn’t permitted. The officer couldn’t believe that Mozilla allowed dealers to make money from something that people have free access to.

Around the same time as Gervase wrote his column, Microsoft announced a change in its licensing agreement that had almost the exact opposite effect of Copyleft and which would have better occupied the Trading Standards Officer. Now, registered users of Microsoft’s operating systems have to agree that if they change the motherboard in their computer, they must purchase a new copy of Windows. This is because, according to Microsoft, the motherboard is the essence of what a computer is, with the CPU being the heart. If a heart transplant takes place it is no longer the same computer and so it needs a new copy of Windows.

While the first instance above is perfectly legitimate for end-users to copy and distribute software, yet looks extremely dubious to those charged with policing software copyright; the latter is perfectly legitimate but looks extremely dubious to end-users who have already bought the software and simply want to continue using it. After all, a computer user only needs to plug his hard disk into a different but compatible computer to recreate the look and feel (and soul?) of his computer experience. Is it not the software and how it is configured that is the essence of a computer, not the silicone widgets and electronic thingies inside? Using Microsoft’s anthropomorphic viewpoint, one could just as easily say the power-supply unit is the heart of the computer by providing the energy that makes all the rest actually work.

Similarly, in the world of music, how many times will recording companies extract payment for the same piece of music? It is not inconceivable that we can be charged repeatedly for the music we bought on records, then bought again on cassette tape, and again for the CD version, and again for MP3 download. That’s not to mention the three types of record (78, 45, 33), 8-track, mini-disc, and DAT versions we might have purchased. While the sound quality of the music on the different formats may, arguably, have improved, very often the quality of the audio device it is played on has actually declined. The difference between the sound from a cassette compared with a CD, over the noise of a car’s engine and road noise, is hardly noticeable. How many iPods are plugged into powered speakers to become a roving hi-fi system to take the place of far better quality but fixed audio systems? Recently, the recording industry wants to make it illegal to make MP3s from our own CDs and presumably LPs, according the EFF.

Luckily, modern musicians are not so enamored with recording contracts as they used to be. Even modest computers are capable of providing multi-track recording and mixing, with all the post-recording tweaks that anyone could want. This doesn’t negate the skills and experience of recording engineers, far from it. US-based musician Tim Carless, when he lived in Brighton, England, set up an analogue recording studio that deliberately used acoustic rather than digital recording. His success can be measured against the likes of Van Morrison who chose to use his studio. Multi–award winning UK band Arctic Monkeys spurned the usual channels to success, and instead released tracks on free MP3 sites before they were available for purchase. When they were on sale, fans paid for the same tracks they had already downloaded, pushing the band to the top of the charts.

Where does this leave us as Mac users? While officially frowned upon, Apple as yet does not stop us using the same copy of Mac OS on our desktop and laptop computers, although family editions of software are available to salve guilty consciences. Apple has nothing in place to prevent us installing GarageBand or the latest iPhoto on more than one computer, and apart from their programs aimed at professionals, Apple’s software applications have no automatic, sneaky, phoning home. In the 1990s Quark’s ubiquitous XPress desktop publishing software became the industry standard as much for the ease of copying it to multi-machines as for its abilities. One wonders if Apple will really rein in OS X for Intel on non-Apple computers or if they will only pay lip service to preventing it and hope to pick up new Mac customers as a result. Mac OS X holds a great deal of interest in the world of non-Apple, Intel-powered computers where forums on sites such as Slashdot are asking who will install it on their PC if it is possible.

It does bring up the question, though, that if we have already paid for the software, should we be expected to pay again for a whole new version if all we want to use are the features of our existing copy? It may be that our computer died and we have been forced to replace it with a new one that our old software cannot run on. An upgrade fee for compatibility seems reasonable, just as is paying for other upgrades in the lifetime of a piece of software. But Microsoft’s insistence on linking Windows to one particular computer and defining what parts can and can’t be upgraded without requiring a new copy of Windows is surely a step too far in their favor.

The crux of the matter is that copying software (and music) may be morally wrong but it isn’t necessarily theft in a criminal sense. In the UK, software is covered under the Copyright, Designs and Patents Act 1988, which makes it a criminal offense only if software is copied for sale or hire, imported into the UK otherwise for private and domestic use, possessed in the course of business with a view to committing an act which would infringe the copyright, or is distributed without proper license of the copyright holder. This goes for old, out-of-date software too, which is covered for 50 years. More recently the Computer Misuse Act 1990 covered hacking into computers and software, making it a criminal offense if the intention or action caused damage. But even if an employee made a copy of software and took it home, he would only be committing a criminal offense if he took it on media that was not his. If he copied it onto his own floppy disk (CD, DVD, USB device), no criminal offense was committed. As with all things legal, the Acts are open to interpretation and testing in court, but as yet this has not given any clarity to the situation regarding copying.

Around the world, the problem of copyright enforcement gets even more clouded. Under Islamic law, for example, there is no such thing as copyright, and traditional Islamic law treats infringement simply as a breach of ethics, although many Islamic counties have adopted copyright laws, which is unlucky for those who do breach them because they are at risk of amputation of their right hand. In North America, there isn’t even any agreement between Canada and America as to what constitutes “fair use.” In Canada “fair dealing” means everything is an infringement unless otherwise defined in law, whereas in America “fair use” means that not-for-profit use is okay. Under communism the means of production are owned by the people in the form of the state, and while an individual’s creativity is recognized often in the form of a one-off cash reward, any further benefits belonged to the people as a whole—the state.

With copyright being such a minefield, it is no wonder that Gervase had a hard time convincing the Trading Standards Officer that they were wrong. They even questioned whether he was able to speak on behalf of the Mozilla Foundation, which is actually quite difficult to prove because Mozilla’s whole existence is in cyberspace. He eventually settled the matter by asking the officer to take it on trust because, after all, they had contacted him at the e-mail address licensing@mozilla.org.

Copyright © 2006 Mark Tennent, mark@tennent.co.uk. The Segments section is open to anyone. If you have something interesting to say about life with your Mac, write us.