Dr. Dobb's Journal January 1997
Over the years, the Software Publishers Association has done a commendable job of patting itself on the back. Every time the SPA's latter-day, computer-literate Elliot Ness wannabes kick down the door of an auto-parts store that is using an unregistered copy of WordStar 3.3 or Microsoft Multiplan, fax machines run overtime spitting out self-congratulatory press releases. But in adopting both the letter and spirit of the nefarious Communications Decency Act, the SPA has gone too far.
Claiming to represent more than 85 percent of the U.S. packaged-software industry, the SPA bills itself as "the leading software trade association for the desktop computer software industry." As such, the SPA's main claim to fame is its aggressive antipiracy program, along with its lobbying efforts on Capitol Hill. (The SPA is conveniently headquartered in Washington, DC.)
Heady with success from recent antipiracy activities in China, the SPA cooked up a unilateral "code of conduct" for Internet service providers. In signing the voluntary "agreement," ISPs promise their domain sites will be free of both unauthorized software and links to sites that might contain pirated programs. To comply with the code of conduct, ISPs would be expected to spy on their customers' web pages, whether or not those customers were suspected of any wrongdoing. Signing the code of conduct does not exempt ISPs from liability, and, in fact, likely holds them to a higher standard of conduct if litigation ever occurs. Not signing incurs the wrath of the SPA.
C2Net, an ISP in Northern California, found all this out the hard way when the SPA launched a lawsuit on behalf of Adobe, Claris, and Travelling Software. The SPA's complaint alleged that C2Net "...uses its Internet site to provide links to other Internet sites containing unauthorized copies of plaintiff's software products." The SPA supplied no details about the software or links in question.
C2Net attorney Terry Gross sees the complaint as an attempt to "bludgeon small ISPs into signing up with the SPA." Gross went on to say that an ISP "can only be liable if it participates in and has knowledge of the improper activity," adding that it is clear the SPA has no such basis in this instance. Surprisingly, the SPA backed down after a couple of weeks, dropping the suit without prejudice.
Wanting to find out more about this curious affair, I packed a grip, hopped on a plane, and headed for Washington. Granted, I didn't have an appointment when I showed up at the SPA's office (which was resplendent in Dole/Kemp '96 campaign stickers), but being a member of the press and the SPA, I hoped to catch a few minutes of anyone's time. And I did -- the receptionist's.
Unfortunately, no one at the SPA had time to meet on the spot or schedule an appointment for later that day or the next. Not to be discouraged, I took the elevator downstairs, found a curbside telephone, and called back upstairs. After more transfers than a bus ride to Tucumcari, a spokesperson finally came on the line and, putting aside horns honking, trucks backfiring, and panhandlers and lame-duck congressmen asking for spare change, we had a pleasant conversation. I was even promised a copy of the SPA's complaint against C2Net, although I had to take the elevator back upstairs and pick it up from my new friend the receptionist.
What I learned was that the SPA wants "to establish open lines of communication" with ISPs such as C2Net. While I'm not a regular reader of "Miss Manners," I would suggest there are better howdy-dos than sending lawsuits via registered mail. Of course, the SPA does say it sent C2Net a presuit message about suspected unauthorized software, along with the offer to review C2Net's FTP logs. C2Net denies receiving the e-mail.
Ultimately, the $64K question is whether ISPs are publishers or common carriers. If ISPs are considered common carriers -- passive conduits that don't alter information and are unaware of illegalities -- then there is no basis for copyright-infringement lawsuits. If, on the other hand, ISPs are viewed as publishers -- as the Communications Decency Act tried to establish -- then the SPA would seem to be countering the Telecommunications Act of 1996, which states that "no provider...of an interactive computer service shall be treated as the publisher...." By implication, it appears the SPA sees ISPs as publishers.
The SPA lawyer I spoke with a few days after my trip to the capital wouldn't commit to either the publisher or common-carrier stance, opting instead for the safe middle ground of "it depends." He did, however, attempt to stake out the position that Internet communication does not qualify for the passive-carrier status that telephone conversation enjoys. The difference, he explained, is that Internet technology alters communication by breaking information into packets for transmission, then reassembling it for presentation.
Right, just like postmarks on envelopes alter the content of letters transmitted by the U.S. Postal Service.
Software piracy is unquestionably a serious problem. But in its zeal to combat this menace, the SPA appears ready to sacrifice personal privacy and individual rights to achieve its more narrowly defined and selfish goals. I can't say I wish the SPA well in its efforts.
--Jonathan Erickson