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Software Piracy Is Not Piracy

Every Piece of Software that is Patented is Legally Required to be Within the Public Domain

By Punkerslut

Image: From RadicalGraphics.org

Start Date: June 18, 2011
Finish Date: June 18, 2011

How Sharing Files Containing Intellectual Property is the Suggested Policy of Patent Law

"...courts have consistently held that translations of computer programs from a form of computer code readable by humans (source code) to a form readable only by computers (object code) do not create protectable derivative works. Transforming a written text from letters on a page to digital ones and zeros that can be understood only by a computer should likewise not create a protectable derivative work."
          --Attorney and Author Stephen Fishman, 2008
          "The Public Domain," Published by Nolo [*1]

     "As hacker groups continue to wreak chaos around the Internet like so many pirate ships terrorizing coastal waters, Sony is vowing their online digital fortress is as rock solid as can be," this reported from the latest Capitalist press, Saturday, June 18, 2011. The article was in response to how hackers pose a threat to corporations. Why would hackers do that? Because Sony illegally charged their bank accounts by hundreds of dollars when they had bought the game Call of Duty -- a released and updated version that, simply put, didn't work for six weeks after being sold. [*2]

     "All I can tell you is we're more secure than we've ever been, and more focused than we've ever been at it," Sony CEO Jack Tretton said in response to the hack attacks. He made no comment that he had sold a bad game that didn't work, ignoring the thousands of complaints requesting a refund on their defective merchandise.

     Another article, actually written and published by the cartel known as the Chamber of Commerce, said, "Pirates aren't what they used to be. No longer content with sailing the seven seas, they're now entering the open waters of the Internet, searching for new sources of stolen treasure." He even went on to say, "Sadly, many computer users downloading copyrighted content aren't even aware that they are trafficking in stolen property." [*3]

     The Business Software Alliance (BSA) is a group of Capitalists united for the purposes of "eliminating piracy." Its own members market games that themselves are known to contain content pirated from musicians and artists, though courts have been uninterested in this type of piracy. [*4] Regardless, the BSA imagines itself to be an anti-pirate organization, while selling software that it has pirated. "The best way to change behaviour is through general awareness campaigns to prove to people that there is value in buying genuine software..." their spokesman said. The BSA has not responded to my inquiries, otherwise demonstrated, that their partners are making money off of pirated material. [*5]

     There's only one major, significant problem with all of these statements. All software bytecode is in the public domain. What do I mean by that? I mean, explicitly, that these anti-piracy organizations are going after people who are distributing public domain material. That is, material owned by nobody, except the public, which anyone can do anything with that they like. The well-respected law publisher, Nolo, has released a book on the issue of public domain by Stephen Fishman. He clearly breaks it down...

"...when a patent is issued, the patent description and drawings are published into the public domain as part of the terms of granting the patent to the inventor." [*6]

     An invention that is patented is public domain, but it empowers the patent-holder with one thing: to make and distribute physical copies of the device that use the patent design. With software, there are no physical copies -- it is all a set of instructions. The patent itself contains every detail necessary to make the program run on your computer. However, you can buy a computer without buying a "set of instructions" (software) already on it, and then just apply the set of instructions yourself (install the software). This is different from patents for factory equipment or chemical processes; for such patents to be of any use as public domain material, one must purchase very specific equipment, typically from the patent holders.

     Yet, the law often looks the other way when people use the ideas of patents themselves, as long as such use is personal. For example, sandwiches are patented, but not many have been prosecuted for making one by themselves without acquiring the "inventor's" permission. [*7] Owners of patented software, however, believe the law should work differently in regard just to them. In case you're worried about breaking the patent law in regards to computer software, ask yourselves if you've ever stolen ideas from the following patent, filed and accepted in 1999....

"A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter." (U.S. Patent No. 6,004,596)

     "A crimped edge along an outer perimeter of the bread portions" -- I guess anyone can be a patented scientist today. Imagine if you had made a sandwich before 1999. You had illegally acquired designs that weren't even released to the public yet. If the patent holders of the sandwich were as aggressive as software patent holders, you'd be sued for ten times the price of the sandwich, because you had acquired a special, "preview" license of unreleased, intellectual property! [*8] Your behavior may even fall under the Economic Espionage Act of 1996 for violation of trade secret law. [*9]

     Thankfully, though, a sandwich is a physical object, and software is not. A piece of software is simply an idea, so a description of software is the idea. Giving that description, properly formatted, to a computer, is the same thing as installing the software. A description of the sandwich, however, is not a sandwich, though. Only the sandwich makers can produce that sandwich and distribute it. Only the patent holders can produce their working idea, which means installing it on a computer. Anyone can distribute the idea of the software, which is the program's executable code itself, just like anyone can distribute the patent to a sandwich -- they're both in the public domain.

     Normally, logic is never applied to law. It relies on precedent, orders, commands, like religion, and never logic. But, I dare venture forth and offer this paradigm: (1), If software is patented, then the software itself is in the public domain, because all patents are in the public domain. And (2), If software has not been patented, or if the patent for it does not sufficiently describe it's workings, then it's not protected, intellectual property. If it's patented, then it's public domain, and if it's not patented, then it's public domain. Many well-respected lawyers today, as well as the government patent offices they work for, have even argued Software Patents Cannot and Do Not Exist! [*10]

The People's Response to a System Based on Exclusion

"There is no one method for attaining realization of the Tao. To regard any method as the method is to create a duality, which can only delay your understanding of the subtle truth. The mature person perceives the fruitlessness of rigid, external methodologies; Remembering this, he keeps his attitude unstructured at all times and thus is always free to pursue the Integral Way. He studies the teachings of the masters. He dissolves all concepts of duality. He pours himself out in service to others. He performs his inner cleansing and does not disturb his teacher with unnecessary entanglements, thus preserving the subtle spiritual connection with the teacher's divine energy. Gently eliminating all obstacles to his own understanding, he constantly maintains his unconditional sincerity. His humility, perseverance, and adaptability evoke the response of the universe and fill him with divine light."
          --Lao Tzu, 600 BC
          "Hua Hu Ching," Part 18

     Police officers break down the bedroom door of a Swedish, sixteen-year old teenager who has been glued to their computer for the past 28 hours. Being led by the FBI, the CIA, and the international police organization Interpol, dorm rooms are raided at the Massachusetts Institute of Technology, the Rochester Institute of Technology, University of Los Angeles California, the University of Oregon, Duke University, and Purdue University. [*11] [*12] [*13] Simultaneous raids took place in Canada, Britain, Australia, Finland, Norway, and Sweden. [*14] The BSA estimated that the individuals involved had stolen over $12 billion in their pirate activities. [*15]

     More than one hundred computers were seized, more than sixty search warrants executed, and sixteen individuals convicted. There was only one minor problem: the BSA lied to the CIA and the FBI about the amount of money they expected these individuals to be making. More than that -- all of the software found on these people was wholly and completely within the public domain. Next time you want to "steal" something, just download the patent's bytecode from the United States Patent Office. And if it's not there, then it's obviously not protected, intellectual property.

     What makes a software patent different from any other patent is that all you need is the instructions to be able to use the idea personally. You simply "install" it onto your computer. If you had your own machinery factory, then you could reproduce anything that's patented. Of course, it's illegal to do it without the permission of the patent holder's knowledge: that is, production or consumption, without permission. However, it is completely legal to distribute the patent itself, which is absolutely in the public domain. When someone downloads a pirated program off of the internet, no crime has been committed -- because the US Patent Office gives the same exact downloads. It's only illegal to use.

     Filesharing? Legal. Using patented files? Illegal. That means networks for the download and upload of software, even so-called "pirated" and without the software corporation's permission, cannot ever possibly qualify under piracy. If it were illegal to distribute patents -- then we're talking about something completely different. Then we're talking about abolishing all concepts of property and ownership ever held by human civilization. Abolish all known property rights throughout the history of humankind, as long as Capitalists can stay in charge: this the tactic of government today in regards to property in "ideas."

     You may not be rich enough to get away with it. The idea of downloading software to steal it, because it's public domain, has been done by Mozilla Firefox, Apple's OS X, the Apple Browser Safari, Google Chrome, as well as Macromedia software products. Each of them stole the software designs from Adobe's 1996 patent for tabbed browsing. [*16] [*17] [*18] [*19] (Patent Number 5,546,528) Even Microsoft is a violator, filing the exact same patent, except renaming "Tabbed Browsing" to "Tabbing" in 2004. [*20] (Patent Number 6,785,865)

     If I believed in the law, I'd say, "The Fourteenth Amendment of the US Constitution guarantees equality before the law, so download all of the software you want, just like these other mega-pirates." But I'm not an idiot -- the law was created for the rich, against the poor. You won't be allowed to pirate software, unless you've got children held at gunpoint in some sweatshop manufacturing the product of your piracy. Unless you're a multimillion dollar corporation making money off of it, you're likely to be arrested for downloading material that is completely within the public domain.

"If you let yourself be made out in the right by another, you must no less let yourself be made out in the wrong by him; if justification and reward come to you from him, expect also his arraignment and punishment. Alongside right goes wrong, alongside legality crime. What are you? - You are a - criminal!"
          --Max Stirner, 1845
          "The Ego and Its Own," Part 2, Chapter II, Section 1



*1. "The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More," by Stephen Fishman, Published by Nolo, 2008, ISBN-13: 978-1-4133-0858-7, ISBN-10: 1-4133-0858-9, Page 76, Chapter 3: "Writings."
*2. "Sony vows 'rock solid' digital fortress," by Steve Tilley, QMI Agency, June 18, 2011, LFP: LF Press, LFPress .
*3. "Pirates of the Internet," by Gary Toebben, President & CEO of the Los Angeles Area Chamber of Commerce, Fri, June 17th, 2011, published by Fox & Hounds, FoxAndHoundsDaily .
*4. The game Saints Row 2, available for the Windows system, has a theme song with music stolen from DJ Cam's album "Mad Blunted Jazz." This is a violation of state anti-piracy laws within the United States in regards to the moral rights held by creators of copyrightable work defined by the Berne Convention in Switzerland. This is true, even if DJ Cam never contractually owned the album, due to cartel-like behavior of the music industry labels that attempt to prevent ownership of music by musicians. According to rights enumerated in the Berne Convention, an author always retains certain moral rights, and according to the state courts of the United States, these rights supersede every barrier: public domain, copyright, license agreements, and federal, US law. To quote Stephen Fishman...

"It is entitled to protection under state antipiracy laws. In the first case on the issue, New York's highest court found that recordings created in Great Britain in the 1930s were entitled to protection under New York’s antipiracy law even though they were in the public domain in Great Britain because their British copyrights had expired in the 1980s. (Capitol Records, Inc. v. Naxos of America, Inc., 4 NY3d 540 (2005).)" ("The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More," by Stephen Fishman, Published by Nolo, 2008, ISBN-13: 978-1-4133-0858-7, ISBN-10: 1-4133-0858-9, Page 119, Chapter 4: "Music.")

*5. E-mail Sent: Sat, Jun 18, 2011 at 7:02 AM.
*6. "How to Find and Use Copyright-Free Writings, Music, Art & More," by Stephen Fishman, Page 59, Chapter 3: "Writings."
*7. I invented the sandwich! You can only prove that wrong objectively by showing that I never made a sandwich before 1999.
*8. "The Case Against the Pirate Bay," by Punkerslut, Day 3 - February 18, 2009, Punkerslut.com .
*9. "The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More," by Stephen Fishman, Published by Nolo, 2008, ISBN-13: 978-1-4133-0858-7, ISBN-10: 1-4133-0858-9, Page 19, Chapter 3: "The Use and Abuse of Copyright, Page."
*10. "Introducing Copyright: A Plain Language Guide To Copyright In The 21st Century," by Julien Hofman, Page 125, Chapter 10: "Software Protection."

"It is not clear what the future will be for software patents. Some commentators have suggested that courts in the United States, which for years have allowed software patents, are becoming more cautious. On the other hand, a court in the United Kingdom, where the Intellectual Property Office has always rejected applications for software patents, recently ruled that the attitude of the Intellectual Property Office was wrong. It seems that the future might lie in some sort of special protection for software."

*11. "Operation Buccaneer," by Computer Crime & Intellectual Property Section, U.S. Department of Justice, United States Attorney, Eastern District of Virginia, United States Customs Service, United States Customs CyberSmuggling Center - C3, Offenses: 18 U.S.C. § 371 - Conspiracy, 18 U.S.C. § 2 - Aiding and Abetting, 18 U.S.C. § 2319 - Criminal Copyright Infringement, CyberCrime.gov
*12. "Operation Buccaneer: Overview," by Computer Crime & Intellectual Property Section, U.S. Department of Justice, United States Attorney, Eastern District of Virginia, United States Customs Service, United States Customs CyberSmuggling Center - C3, CyberCrime.gov .
*13. "Federal Law Enforcement Targets International Internet Piracy Syndicates: Multiple Enforcement Actions Worldwide Snare Top 'Warez' Leadership," by the US Department of Justice, Tuesday, December 11, 2001, Justice.gov .
*14. "U.S. Expands Investigation Into Piracy Of Software," by Philip Shenon, December 19, 2001, published by the New York Times, NYTimes.com .
*15. "U.S. seizes computers in software piracy raids," by Greg Farrell, 12/12/2001 - Updated 12:43 PM ET, published by USA Today, USAToday.com .
*16. "Macromedia Adobe Patent Trial: Macromedia Wins Patent Counterclaims Trial Against Adobe," by Yenra, Yenra.com . Macromedia was the first to pirate Adobe's tabbed browsing patent.

"Macromedia today announced that a jury ruled in its favor in a counterclaims suit against Adobe Systems. The verdict included a damage award of $4.9 million. Macromedia intends to ask the court to issue an injunction to stop Adobe's infringement, and also intends to appeal the verdict in the initial Adobe case."

*17. "Apple's interface held to the fire in dubious suit," By Katie Marsal, Saturday, April 21, 2007, published by Apple Insider, AppleInsider.com .
*18. " Method of displaying multiple sets of information in the same area of a computer screen," Inventors: Johnston; Kevin R. (Mountain View, CA), Assignee: Adobe Systems Incorporated (Mountain View, CA), Appl. No.: 08/265,653, Filed: June 23, 1994, US Patent, Patents.com .
*19. "Adobe Wins Patent Trial Against Macromedia," by Adobe, May 2, 2002, Adobe.com .
*20. "Microsoft Wins 'Tabbed Browsing' Patent," By Sean Michael Kerner, September 10, 2004, Published by InternetNews, Patent Number 6,785,865, InternetNews.com.

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