The Business Software Association of Australia announced last week that it had caught a pirate.
It got an injunction, costs and unspecified damages from Adelaide bulletin board operator Jarrad Webb in the Federal Court.
Webb was offering Aldus, Microsoft and Autodesk programs over his bulletin board. This means people with a computer and modem can dial a phone number and download the files on to their computer. People pay for the use of the bulletin board, typically sending money and receiving a password.
Some of these programs cost up to $1000 in the shops. Sure, you get a manual if you buy from the shop, but there are so many guides to major programs available in the shops that this does not matter.
The BSAA, which regularly trawls bulletin boards and receives tip-offs from boards uses, got what is called an Anton Piller order against Webb.
An Anton Piller order is a legal device like a civil search warrant.
In normal civil cases there is a discovery process where each party asks the other party for information and documents in a civilised way. However, in cases of computer piracy, merely asking will not help, because the pirate will do a Richard Nixon and erase the files so the evidence is lost.
When BSAA arrived with its order, however, Webb was out, but he still got wind of what was about to happen and he started to erase files.
This earned him a fine of $500 for contempt of court and about $13,000 in costs awarded against him. In the copyright case an injunction was ordered against him from repeating the breaches and an order for costs for about $16,000.
In all, Webb’s attempt to profiteer from other people’s intellectual property has cost him dearly. Good.
But there is a wider public issue here. I am all in favour of the law and the courts protecting people’s intellectual output, such as making computer programs, writing books or inventing gadgets. But is copyright the correct sort of protection for computer software?
Leaving software out for now, the state grants monopolies to inventors and writers. Inventors get a monopoly in the form of a patent for 14, 16 or 20 years depending on the product. After that anyone can produce the invention. It is in the public domain. And they do, very competitively, especially in areas like pharmaceutics. The result is cheaper generic drugs, cheaper light switches and all sorts of clever useful gadgets in the public domain.
Writers get a monopoly over their writing for their life plus 50 years. Then it is public. So the works of Shakespeare are no longer copyright and the public gets a benefit, because good writing is timeless.
What about computer software? Under present law it gets copyright, which lasts for at least 50 years. By then, of course, it is long since useless. The public gets no benefit in return for granting the monopoly.
Copyright and patents law were designed to give a monopoly for a reasonable time for producers of intellectual property in return for some public benefit at the end of the monopoly period.
Fifty-year copyright is the wrong tool to protect the intellectual property in software. There should be a special, say, five-year software rule which befits the matter we are dealing with. They should get a monopoly for five years, or perhaps seven, to sell to cutting edge business users, which would give the incentive for further development, and then the program should go into the public domain while it is still of some use. After all, you cannot buy a five-year old version of, say, Microsoft Word in the shops, so why should Microsoft get a state-enforced monopoly for it?
This one-sided protection with no public benefit should end, and Australia should push for that internationally. Bear in mind, too, that the BSSA, although it has proudly the word “”Australia” in its name is in fact dominated by the big US software companies.
As for the use of the Anton Piller orders against pirates, good. Justice Graham Hill pointed out that theft of intellectual property is hard to detect, so disobedience of such an order is to be especially frowned upon.
But the public would be more supportive of sterner action against pirates if the intellectual property regime better balanced the private and public rights: the right to a reasonable profit and the right to bring inventions into the public domain while they are still of some use.