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Last Updated: Friday, 2 June 2006, 11:58 GMT 12:58 UK
How to split software and songs
All bits are equal but, it seems, some are more equal than others. Technology commentator Bill Thompson reflects on the difference between software and films.

CD being placed in PC, Eyewire
More than a quarter of firms pirate software, says Fast
The Federation Against Software Theft (Fast), was set up more than 20 years ago to raise awareness of software piracy and lobby Parliament for changes in the law to help software companies protect their business.

It has had a high profile in the computing world, and many companies have been prosecuted for using unlicensed software following its investigations.

This has had a big impact. According to a recent press release the number of businesses using software without a license was 45% in 1994 and 27% in 2004. It stayed at 27% in 2005 so there is clearly work to be done.

Caught case

Fast is largely concerned with copyright enforcement and, as a result, it is closely allied with the music and film industry, both of whom are very worried about unauthorised copying of their products.

Just this week it called on the government's Gowers Review into UK intellectual property law to address what it calls "the deficiencies in the IP regime".

Fast thinks that the police don't take enough notice of software piracy, and it would like more forms of copyright infringement to be treated as criminal rather than civil matters, so that the police can prosecute instead of leaving it to the lawyers to sue.

This serves the interests of the film and music industries, of course, since they would like to see anyone who downloads a song without permission prosecuted in the criminal courts.

Bill Thompson
Software is not the same as books or music or film. It expresses instructions, and is more like a machine than an expression of creativity
But it creates a problem for those of us who think that copyright law is already too strongly enforced and that our ability to share should also be defended.

It would be helpful if the two sides could be separated, because then the software industry might be persuaded that it is a waste of time to lock content in ways which require companies to build media players with limited functionality that can't do things users want.

At the moment software publishers feel they should support restrictive copyright law because it protects the programs they write. Code falls under copyright law like other forms of creative expression, and in the digital world, a piece of software is just another collection of ones and zeroes, indistinguishable from a music file or a ripped DVD.

Bit bucket

But are they really the same? We are repeatedly told, that a bit is a bit is a bit, and that since the meaning of a collection of bits lies only in its pattern of use we should not discriminate between them.

That may be true when it comes to moving data across a network like the internet, but it isn't the case in the bowels of a computer. The chip in your PC knows that some bits are data and some are instructions, and it works very hard to keep them apart.

The instructions, translated from a programming language like C or Java into a binary language that only the processor understands, are conceptually as different from the 32-bit codes for each pixel in a bitmapped image as the electric current in a mains cable is from the current in your nerves.

Both involve the movement of electrons in a voltage gradient, but one is just a way of moving energy while the other creates patterns of activity and underpins our emotions and intelligence.

Man in handcuffs, BBC
Fast wants software theft to be a criminal matter
Software is not the same as books or music or film. It expresses instructions, and is more like a machine than an expression of creativity.

Perhaps we should recognise this in the way we apply copyright to programs, and distinguish between the code, which is a form of writing, and the compiled executable. Perhaps we should not treat software as a form of intellectual property at all.

This could be construed as an argument in favour of software patents, since it sees programs as just another type of machine, and innovative machines can be patented.

But the point is not to protect program code or allow the ideas it expresses to be patented, but to offer stronger legal controls over the distribution and use of the finished product - the binary files that contain the instructions used by the chips in our computers.

We don't need to allow software patents to achieve this, and nor do we need to rely on copyright to stop people copying programs. We can just call it theft and prosecute those who steal under the same laws we use to protect cars and tables.

If we allow that programs are not the same as poems, and that Microsoft Word can be "stolen" in a way that a White Stripes song cannot, where does this leave us?

It means that the interests of the software industry and the music publishers do not have to be completely aligned.

Fast and other industry groups could argue for better protection and stronger enforcement of their property rights without implicitly endorsing the RIAA's legal campaign against 12-year-old downloaders.

Downloading an unlicensed song doesn't feel like theft in the way that taking a CD from a shop does and very few young people are convinced by the music industry's increasingly desperate rhetoric.

But we may be able to persuade the next generation of net users that installing a stolen program is different.

Perhaps those working on the Gowers Review can start this process by proposing stronger laws to apply to the bits that do things, while encouraging fairer and more balanced controls for the bits that solely capture the outputs of creative expression.

Bill Thompson is a regular commentator on the BBC World Service programme Digital Planet

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