By Ajay Kashyap
Undoubtedly software piracy has numerous alarming effects. It kills creativity and originality in software manufacturers, stunts the development of the software industry, deprives the programmers and others engaged in the production of original software of their just returns, robs the government of revenue and fuels the parallel economy. Several factors are responsible for the proliferation of software piracy. The exorbitant cost of original software makes the dirt cheap, pirated version (which works just as well) a tempting, easy and relatively safe option. Statistically, the odds are against the end user being prosecuted. Second, each PC user has all the equipment he requires to make perfect copies of the original.
In may instances there is an erroneous belief that purchase of software includes the right to reproduce it whereas, in fact, the buyer is merely a licensee who is authorized to use the software for his own, personal use. Many people do not realise that they break the law when they loan their floppies to their friends to copy the software. Third, enforcement action has not been taken on such a scale as to act as an effective deterrent. Only three complaints have been made to the police in the past 12 months in Delhi, and 5 in the last three years; not one of the 8 persons brought to book in these cases has yet been convicted. Most serious, however, appears to be the ineffectiveness of the law to redress the problem.
“None of our laws were written with the Internet in mind,” observed a Los Angeles attorney who prosecuted Captain Blood, one of the most notorious software pirates brought to book in the US in recent times. It is difficult to apply existing laws to emerging technologies even in advanced countries, never mind the scenario that prevails in India. There is a quantitative difference in the perception level of investigating and prosecuting officers and magistracy. The conventional laws of evidence and rules of criminal procedure governing, for instance, those relating to property case and physical evidences collected during investigation are areas where the present wherewithal is hopelessly inadequate to meet the requirement.
The offence of software piracy is a cognizable crime punishable under section 63 of the Indian Copyright Act, 1957, which was amended in 1994 to make it more proactive towards checking piracy, and sections 78 and 79 of the Trade Marks Act. In the 1994 amendments, the definition clauses were modified to specifically include computer programmes within the scope of the Act. All forms of software piracy now fall within the ambit of the Act. The law now prescribes a minimum punishment of seven days imprisonment, which may extend up to three years, and a substantial fine up to Rs. 50,000/- for such offences. There is a provision for enhanced punishment with higher fines for second and subsequent offences.
On being convicted on the second and subsequent occasions, the offender faces a minimum sentence of one year, which may extend to three years, and at least a Rs.1 lac fine which may extend up to two lacs. However, very few prosecutions have been launched as there seems to be more emphasis on education and creation of awareness, both amongst the general users and the enforcement personnel. The conviction of purpose and resoluteness of will required to meet the challenge of fighting software piracy is sadly missing.
Three interesting, albeit controversial, arguments about the situation relating to software piracy may be mentioned. The first concerns the marketing strategy of software Many people do not realise that they break the law when they loan their floppies to their friends to copy the software Software Piracy Piracy will make you go blind Support Creativity manufacturers. The second concerns the pricing of the software, and the last concerns ethics: Whose interest are we protecting and at whose cost?
Legitimate copies of the same software are retailing in US at price around 20% cheaper While calculating estimated losses incurred by software manufacturers through software piracy, the accuracy of such figures themselves were questioned as these calculations assumed that those who purchased pirated copies would have purchased legitimate copies, had the illegal versions not been available. It may be that the software manufacturers have realised that such assumptions are certainly unrealistic and have devised their marketing strategy with those very thoughts in mind. What this implies is that, even if all pirated copies were non-existent, some software manufacturers may realise that they may not gain a significant amount of business as a result. Therefore, for the time being, they may wish not to pursue actions to attempt to combat piracy.
Instead, they deliberately allow such activities to take place in the hope that their software may become widely used and established as industry standard, thereby becoming a necessity in many organizations. When such a time does arrive, the software manufacturers would then intervene to help stop piracy, as the users have become so ingrained with the software they are then reliant on the legitimate vendors for any future developments and revisions. The second point concerns the pricing policies of the software manufacturers. It is quite obvious, from browsing through many of the American computing magazines, that legitimate copies of the same software are retailing in US at price around 20% cheaper than what it would cost to purchase them outside the US.
Thus customers outside the US are paying a premium in order to obtain legitimate copies of software because the software manufacturers have decided, for various reasons, to sell their product significantly more expensive than they would in the US. Whatever the rationale for such policies, what is certain is that the effect of selling legitimate software at inflated prices, coupled with the low prices of pirated copies, does not conform to the best environment for combating piracy. The third and most pertinent question to many is, whose interests are we serving anyway by enforcing the copyright laws? Certainly in a poor country like India there are strong grounds to take a soft view.
Many law enforcers and trade members feel that the unrealistically exorbitant prices of legitimate software is the root cause of the problems, and laws are being framed to serve the vested interests of powerful multinational companies whose primary objective is to maximise their profits. India, particularly, appears to have been pushed into amending its legislation under severe pressure from the US. The stringent legislation and its effective enforcement should have been bargained for availability of legitimate copies of software at a price affordable to the Indian user. The higher volume sales would have offset the loss due to lower price. Though not legally a justified argument, there is strong resentment against the position presently taken by Indian legislature in the matter.
Do not steal it Winners don’t use drug The offence of software piracy is a cognizable crime punishable under section 63 of the Indian Copyright Act, 1957, which was amended in 1994 to make it more proactive towards checking piracy. The law now prescribes a minimum punishment of seven days imprisonment, which may extend up to three years, and a substantial fine up to Rs. 50,000/- for such offences