Now that I’m confident the statute of limitations has expired, I’d like to tell a story about adolescent software piracy. In the 80’s, before PC and Mac conquered our homes, we lived in a Babel’s tower of proprietary computers. There weren’t any billion-dollar software companies yet, just some enterprising nerds trying to make money in the brave new world of intangible goods. Microsoft, Electronic Arts, Activision, Psygnosis, Epyx – these are names with a deep personal connection for me. (Yes, I suppose those “Lotus 1-2-3” and “WordPerfect” people may have been swimming in money, but that’s not terribly interesting to my 10-year-old self.)
Back then, when you wanted to have software for your hardware you still had to go to a physical store and bring a box home with some sort of physical media (Babbage’s! Electronics Boutique!). A 5.25” floppy disk (360KB each!), then double-sided 5.25” floppy disks (720KB!), then multiple 5.25” floppy disks, then multiple 3.5” disks (1.44MB each!). These are the days before consumer-grade hard drives: the software had to fit in the physical RAM of your hobbyist hardware, swapping out one bit of content with another by loading more stuff from the disks. Bonus: reading from disk was slow as a snail.
For all of the reasons above, software ran a lot closer to the metal. It had to; there were no “APIs” except for whatever features were built into the chip. It wasn’t unusual to hand-tune some code in assembly language because you needed to precisely synchronize what you were trying to draw on screen with the “vertical sync” of the television. (Yes, you plugged your computer into a tube television and used an adapter to convert the computer’s output into a signal more akin to a VHF antenna broadcast). You could buy magazines at your local Waldenbooks and B.Dalton Bookseller with titles like RUN that included pages and pages of source code for whatever game or application was being published that month. In print. I can remember spending an hour typing in the code for a game, line by line, discovering malbehaviors when I tried to run it, and then having to debug the program to find where I typed something wrong.
(Sidebar: that thing about mastering something by spending thousands hours doing it? The above process worked really well for that.)
Why go through all that effort? I was a poor-ass kid that didn’t have the cash to match my appetite for computer games. Thinking back on that time in my life, though, I was far from alone in my total lack of education in copyright law or economic ethics. Kids (well, American kids at least) don’t get that sort of proactive moral education outside of the church or familial role models. Which is not to say that my parents were thieves or morally hollow; they simply had no idea what I was doing. In those earlier digital decades, I’m pretty confident that nobody (that is, non-technical average parents and businesspeople and nurses and salespersons and whatnot) knew what was going on unless they were actively involved in the doing.
In those pre-Internet years, the legal system didn’t really pay much attention to teenage game piracy mischief. Game developers and publishers certainly did, and a tit-for-tat copy protection battle escalated for many years. Developers would create a new method of preventing a game from being copied from one disk to another. Hackers would, uh, hack it. Much of this battle was pretty clever stuff, on both sides. For example, I remember really wanting to play BattleTech: The Crescent Hawk’s Inception (don’t judge) on my Commodore 64 but I was 12 and broke. One particularly annoying copy protection feature was a dependency on the printed manual that comes with a purchased copy of the game. It contained a map, and at a certain point in the game you needed that map to answer a question. Fail the question, fail the copy protection, fail the game.
Now, if you had a copy of the game, from a friend or a BBS or who knows where, you probably didn’t have the manual. But you did have all of the code for the game, sitting on a 5.25” disk in 6510 assembly, readable and writable with a hex editor that could burn changes straight to the disk. You could replace the bit of code that calls the copy protection test with a bunch of
0xEA NOP codes and 💥 finish the game! Usually, things would be trickier, with checksums to rebalance and whatnot, but I do have a vague-yet-specific memory of doing something exactly like this and being able to finish the game.
At the time, I didn’t really feel like I had just committed copyright infringement. (I’d never heard the word copyright.) I didn’t think of myself as a “pirate” – those were the people that tried to profiteer, to crack games at scale, to monetize their knowledge of the deep underbelly of computers and dark webs. Right? Hell, there were monthly clubs where people of all types would gather and trade their collections as if they were baseball cards!
The world still needed to assert that intangible goods are worthy of the same respect we give to non-intellectual property. This has always been a conundrum for me, for on the one hand I have made all of my adult income in the service of intangible software goods. And yet, on the other, something changes about an entertainment experience through the act of experiencing it. My emotions, memories, opinions, and stories can’t possibly be owned and licensed from somebody else. Right? Who owns a story? We all feel compelled to share stories with each other, even the stories we paid for. (This is fundamentally the point of movie trailers and viral marketing.) But there must be limits to this ownership of narrative.
Intellectual Property Law, Today
Modern copyright, trademark, and patent law is (pardon my language) clusterfucked. You can publish a story and your estate has exclusive ownership of that story for 70 years after your death. You can grow a hybrid seed from two plants, patent that seed, and prevent any other farmer from doing the same without paying you. You can claim exclusive ownership of phrases like “that’s hot”. If you’re Facebook, you can trademark the word “face.” All of these things are currently legal, which is why patent trolls and predatory trademark prosecution and YouTube Content ID and all sorts of other billion-dollar enterprises thrive on the knowledge that larger, more powerful organizations can force smaller entities into submission. The difference in consequences between somebody selling a Mickey Mouse fanfiction novella and somebody ripping off a little-known short story isn’t determined by the law, it’s determined by the the degree of legal resources.
I frequently need to remind myself that the law does not represent ethics, or justice. It represents the enforcement of power systems. Sometimes the law happens to align with a fundamental moral truth, but nothing requires that to be so. For any individual IP violation, different answers could exist for whether it is legal or ethical. Intellectual property law defends economic rights only, which means the moral outcome of a dispute derives from the moral compass of the two parties.
I am not optimistic about future trends for copyright, trademark, and patent law. Multiple Supreme Court cases in the US have defended and expanded the reach and strength of IP rights for creative mediums in favor of the corporations that own and monetize our creative works. For example, while copyright exists on this blog from the moment it was published, I cannot assert my legal rights related to this post until the content has been registered with the Copyright Office. A nominal $35 fee would register this piece of content, which will take one to seven months to process. In the meantime, Joe’s Blog (who scrapes and republishes my work without permission) can essentially proceed uninterrupted. If Joe has more/better lawyers or more money, there’s really nothing to be done about it. Whatever minimal economic value exists from my ramblings can be sucked out and deployed on a platform with a monetized audience. Legal teams at Disney, Fox, AT&T, etc. certainly submit all of their content for copyright registration by default. It’s a small but valuable line item in their legal budget, and it’s money that I could never justify as an investment.
Given the opportunity, would I copy a game for personal use today? I don’t think so. I’m no longer broke and can buy the things I want; there’s just so much less friction to buy something than deal with all of the technical (viruses) and legal risks. With age and maturity, we (hopefully!) can better appreciate how much effort is involved in crafting a game or a story or a song.
Now, strict interpretations of the law – “stealing is stealing” – are defensible in the abstract. But I’ve not yet met the person who can apply that strictness to all aspects of their financial relationship with the world; pirating a game is stealing and illegal, but using various services to get out of a speeding ticket is perfectly rational because it is legal. Don’t shoplift that shirt, but grab that extra refill from the soda fountain without paying for the refill. Did you binge on Napster? Have you ever shared your Netflix account? Used your old school email address to get “student pricing” on something? All of these things arguably prevent someone from reaping the full value of their work.
My point: strict legal interpretations are not the same thing as a pure soul and tuned moral compass. These microagressions endure because different people have different definitions for what should be the fair market value for something, and (even more complex) our estimates of FMV evolve over time.