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Software Piracy Remains Widespread
Yahoo News - IDG News Service ^ | 5/18/2005 | Grant Gross

Posted on 05/18/2005 10:30:09 AM PDT by Mike Bates

More than a third of the software installed on PCs worldwide during 2004 was pirated, with losses from unauthorized software increasing by $4 billion from 2003, according to a study released this week by the software trade group Business Software Alliance.

Thirty-five percent of all software installed on PCs was pirated, down from 36 percent in 2003, according to the study, conducted by research firm IDC.

Estimated losses from software piracy climbed, however, from $29 billion to $33 billion, as both the legal and unauthorized software markets grew from 2003 to 2004. IDC estimated that $90 billion worth of software was installed in 2004, compared to $80 billion in 2003, with sales of legal software growing 6 percent.

Countries using the most pirated software, according to IDC, are Vietnam, Ukraine, China, and Zimbabwe. Ninety percent or more of the software used in those countries was pirated during 2004, according to the BSA report. In more than half the 87 countries studied, software piracy exceeded 60 percent.

(Excerpt) Read more at story.news.yahoo.com ...


TOPICS: Business/Economy; Crime/Corruption; Foreign Affairs; News/Current Events
KEYWORDS: bsalliance; computer; intellectualproperty; pc; pirated; programs
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To: savedbygrace
But the legal difficulties exist because software companies do not SELL the software and the disc, but instead license the use of the software.

Subject to the terms of the license agreement, which is a contract.

BTW, the license exists and is in force even if you don't agree to the terms.

I think you're confusing having a license with not having a license. If you do not agree to the terms of the license agreement, you don't have a license to begin with, so to say the terms are "in force" makes no sense at all. If you don't have a license, you're not entitled to use the software, so if you use the software anyway, you're receiving services to which you are not entitled either.

61 posted on 05/19/2005 5:52:49 AM PDT by general_re ("Frantic orthodoxy is never rooted in faith, but in doubt." - Reinhold Niebuhr)
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To: antiRepublicrat
Software vendors like to stay out of contracts for the most part...

Ummm, what? The sale of a license to you is itself a contract to make software available for your use in exchange for your money. Just because you don't sign a piece of paper doesn't make that agreement any less of a contract.

Plus, contracts have to have as part of them a promise of performance, and all software licenses I've read explicitly deny a promise of performance.

No, no, no. You've confused a warranty of merchantability - a promise that something is fit for some particular purpose - with the promise to deliver the software to you and make it available for your use. That's their end of the bargain - what they disclaim is any implied warranty of merchantability. The promise of performance is that they agree to make the software available for you to use, and you agree to give them money - the merchantability disclaimer is merely them saying "we'll let you use it, and if it works for you, great, but if not, it's not our problem", but that's not disclaiming any and all responsibility for anything on their part. They still have to provide you with the software, they just disclaim any liability if it doesn't perform as advertised.

62 posted on 05/19/2005 6:01:06 AM PDT by general_re ("Frantic orthodoxy is never rooted in faith, but in doubt." - Reinhold Niebuhr)
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To: A. Pole

I agree with you. General_re is the one who wrote that.


63 posted on 05/19/2005 6:12:45 AM PDT by savedbygrace ("No Monday morning quarterback has ever led a team to victory" GW Bush)
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To: general_re
Please do an internet search for the legal requirements (not the dictionary meaning) for a contract. Then you'll understand. Maybe search in the UCC, the Universal Commercial Code.

As for the license thing, I was referring to your example way back up the thread where you set up a scenario in which you didn't agree with the license agreement but you clicked on "I Agree" anyway so you could use the software without paying full price. If you're using the software in non-compliance with the license agreement, even if you disagree with the license agreement, it's still in force. That was my meaning.

64 posted on 05/19/2005 6:19:06 AM PDT by savedbygrace ("No Monday morning quarterback has ever led a team to victory" GW Bush)
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To: general_re
It's not that I'm "infringing" on the license agreement - I don't have a license agreement

You break contracts, and you can't break a contract you never accepted. You don't infringe on a license agreement, you infringe on the copyright of the copyright holder by using the software without permission. The only thing that grants you that permission is the license.

You don't need to see or agree to the license to be liable for copyright infringement. I guarantee you Windows is registered (and before five years after creation), and copyrights are stated on the box and during the install, so there is no "I didn't know" defense. The reason for the click-wrap licenses are that most are so insanely restrictive in ways that people would have never thought. Companies want to have something to say you knew you couldn't do something prohibited in the license that any sane person would think is normally allowable.

As far as contracts, my company has one with Microsoft. As part of that negotiated contract, we get support, services, upgrades, and licenses. That negotiated contract says we have license to run X copies of Windows XP. If we run more than X copies, then we would probably be hit with a suit for both copyright infringement and breach of contract. Our contract includes those things necessary for something to be a contract:

  1. Offer: They offered us all that
  2. Acceptance after meeting of the minds: After negotiations over terms, services and price, we accepted (note there's no haggling in most licenses)
  3. Promise to perform: They must live up to their end of the deal (promises of performance are explicitly denied in licenses)
  4. Valuable consideration: We paid big bucks
  5. Time or event when performance must be made: There's lots of those in the contract
  6. Terms and conditions for performance, including fulfilling promises: We got that too (again, there's no promise or performance in licenses)
Now you see how different they are. Your average guy who pirates a copy of XP is guilty of copyright infringement, not breach of contract.
65 posted on 05/19/2005 6:23:00 AM PDT by antiRepublicrat
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To: general_re
The sale of a license to you is itself a contract to make software available for your use in exchange for your money.

No, it's simply a license that I bought. Likewise, with the GPL, there is no contract. The GPL is simply that which allows me to use another's coyprighted work where before there was no allowance. The Windows XP license has terms in it that would likely be declared invalid if the license were interpreted as a contract.

66 posted on 05/19/2005 6:33:22 AM PDT by antiRepublicrat
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To: savedbygrace
I understand perfectly, thanks - if you don't have a license, you have no right to use software. To say that the terms of the license agreement are "in effect" makes no sense whatsoever - there is no agreement. You can't be bound by an agreement you don't agree to, but if you don't agree, you have no license, and no right to use the software.
67 posted on 05/19/2005 6:35:13 AM PDT by general_re ("Frantic orthodoxy is never rooted in faith, but in doubt." - Reinhold Niebuhr)
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To: ShadowAce

"It isn't "theft." "


It isn't? Hmmmm, you are in possession of soemthing that you did not pay for, but, somehow, that isn't theft?


68 posted on 05/19/2005 6:41:40 AM PDT by shellshocked (They're undocumented Border Patrol agents, not vigilantes.)
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To: ShadowAce

"Theft includes depriving the legitimate owner of a product of its use--not just taking it."


No, it does not. Once again, proving that you don't even have the basic concepts of right and wrong.


69 posted on 05/19/2005 6:44:01 AM PDT by shellshocked (They're undocumented Border Patrol agents, not vigilantes.)
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To: antiRepublicrat
You don't infringe on a license agreement, you infringe on the copyright of the copyright holder by using the software without permission. The only thing that grants you that permission is the license.

And the way you get a license is through the terms of the contract called a "license agreement".

You don't need to see or agree to the license to be liable for copyright infringement.

I understand that, but if you'll scroll back up, the thing that kicked this discussion off is the contention that pirating software is essentially the same as theft of services, so "copyright infringement" doesn't enter into it.

Your average guy who pirates a copy of XP is guilty of copyright infringement, not breach of contract.

You're still hopelessly confused here. If I go to the store and buy XP, I have a contract with Microsoft even though I didn't sign anything. I have:

1) an offer. They offer me a license to use their software.
2) acceptance. As the agreement states, I accept the agreement by my use of the software. If I do not agree, I so indicate by not using the software.
2) a promise to perform. They agree to provide the software to me and allow me to use it. This is the promise of performance they make to me, and it has nothing to do with the warranty of merchantability.
4) consideration. I gave them money in exchange for the license.
5) time when the performance will be made - it's understood that the software will be immediately available to me as soon as I pay.
6) terms and conditions. Read the EULA for said terms and conditions governing the grant of license.

See, if you don't fulfill your end of the bargain, you don't have a license, and the only way to get a license is by abiding by this contract presented to you. If you don't have a license, you have no right to use the software. Therefore, you've stolen the services of the Microsoft corporation, whether the law calls it that or not. You can argue all the live-long day that a EULA isn't a contract, but you better believe the courts don't see it that way.

70 posted on 05/19/2005 6:46:07 AM PDT by general_re ("Frantic orthodoxy is never rooted in faith, but in doubt." - Reinhold Niebuhr)
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To: ShadowAce

"Theft--theft is a felony; it is the taking of someone else’s property with the intention of permanently depriving that person of it."


Theft is NOT always a felony, and theft does NOT always means depravation.


71 posted on 05/19/2005 6:46:46 AM PDT by shellshocked (They're undocumented Border Patrol agents, not vigilantes.)
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To: shellshocked
Read my Post #25. The legal definition of theft is exactly what I portrayed it to be. The common definition is what you are using. If you are hauled into court for pirating software, the charge will not be theft--it will be copyright infringement.
72 posted on 05/19/2005 6:48:52 AM PDT by ShadowAce (Linux -- The Ultimate Windows Service Pack)
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To: Mike Bates

Meanwhile RIAA reported 2 billion dollars in lost pirated music based on songs being recorded off the radio.


Same thing basically.


73 posted on 05/19/2005 6:51:16 AM PDT by Centurion2000 ("THE REDNECK PROBLEM" ..... we prefer the term, "Agro-Americans")
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To: antiRepublicrat
No, it's simply a license that I bought.

The agreement to buy that license is a contract. You agree to pay money, they agree to give you a license. I'm really not quite sure what you gain by denying this, but you're completely wrong in asserting that contract doesn't enter in anywhere.

74 posted on 05/19/2005 6:51:53 AM PDT by general_re ("Frantic orthodoxy is never rooted in faith, but in doubt." - Reinhold Niebuhr)
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To: general_re
Here's the statement you made in #50 I was referring to:

What license agreement? By which I mean, suppose I decide that I don't agree with your contract and that I won't abide by it or be bound to it - I didn't read or agree to a EULA when I downloaded my pirate copy of Office, after all. So how can I infringe on a contract I'm not a party to, that I don't agree to? I can't - in fact, in that case, I don't have a contract, and hence I don't have a license to use the software. It's not that I'm "infringing" on the license agreement - I don't have a license agreement, and hence I'm receiving services I'm not entitled to have. IOW, theft of services. QED.

So, according to this scenario, you've gotten ahold of a pirated copy of the software and even though you disagee with the licence agreement, you're using the software. How do you manage that without clicking on the I Agree button? So, you've clicked on the I Agree button without agreeing with the license. So what? The license is in effect because you're using the software without complying with the terms of the license. The license is still in effect, even if you don't agree with the terms, because you're using the software. That's according to your example in italics above.

To be clear for those watching at home, both you and I agree that it is wrong to do this - use pirated software - but this is a discussion of some of the legal principles involved. We agree about the moral principles.

75 posted on 05/19/2005 7:02:12 AM PDT by savedbygrace ("No Monday morning quarterback has ever led a team to victory" GW Bush)
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To: general_re
The agreement to buy that license is a contract.

If I buy software at Best Buy, I do have an implied contract, governed by the UCC, to pay them money to be allowed to walk out with the software. But the license itself is not a contract.

In other license cases, such as BSD or GPL, or when downloading other freeware or shareware (until registered), there isn't even that implied contract. I just use the software under the license granted.

76 posted on 05/19/2005 7:03:25 AM PDT by antiRepublicrat
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To: savedbygrace; general_re
How do you manage that without clicking on the I Agree button?

Maybe he got a hacked version with the license removed. Still, you are correct, he would be using a copyrighted work without a license.

77 posted on 05/19/2005 7:05:26 AM PDT by antiRepublicrat
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To: general_re
I'm really not quite sure what you gain by denying this, but you're completely wrong in asserting that contract doesn't enter in anywhere.

See 76. An implied contract with the retailer may be in the purchase. That contract governs the terms of the sale, but not the terms of the license. I don't gain anything by this, only clarifying the law concerning contracts and licenses.

Believe me, Microsoft does not want its licenses to be interpreted as contracts. They do not want large portions of them thrown out in court. Contracts are iffy and easily challenged. Licenses are much harder to break -- actually, I've never heard of one being broken.

78 posted on 05/19/2005 7:10:36 AM PDT by antiRepublicrat
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To: rkhampton
If you're one of those people that are jealous of the rich and think their wealth should be redistributed, you're on the wrong forum.

I had an exchange with a Freeper last week who claimed he was a conservative but seriously advocated that all the assets of Bill Gates and Warren Buffet be confiscted at their death because they might leave it to liberal causes.

Ya can't make this stuff up!

79 posted on 05/19/2005 7:20:20 AM PDT by Protagoras (Evolution is amazing, I wonder who invented it?)
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To: savedbygrace
The license is still in effect, even if you don't agree with the terms, because you're using the software.

The license is not in effect, because you're not abiding by the license agreement governing your use of the software. That's why you have a problem - because you don't have a valid license to use the software.

80 posted on 05/19/2005 7:43:39 AM PDT by general_re ("Frantic orthodoxy is never rooted in faith, but in doubt." - Reinhold Niebuhr)
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