A primer on software piracy cases in the courts

Abstract

As with much technological change, the law and judicial system have lagged behind in adapting to the changing world of computer and software development. Changes in software development have created new classes of criminals and contract violators, and new theories and techniques to catch them. This paper discusses the fate of one breed of computer criminal, the software pirate, before the courts. Software piracy is a relatively recent type of computer crime because software development or engineering is no longer a custom design operation for particular organizations on particular computers. Software is now being produced for mass consumption and the ‘generic’ software package is not far off. Software packages may be very valuable even though they may be stored in a compact place, (like jewelry or money) such as on a microprocessor chip or a floppy disk. Software packages may vary in price from tens of dollars to millions of dollors. As with the related and booming practice of video disk piracy, it is often easy to make multiple copies of software for a miniscule fraction of the average original development cost. Despite the widely acknowledged existence of widespread software piracy, there have been very few cases reaching the civil courts and nearly none before the criminal courts. There are several explanations: few pirates are caught, few owners of software are willing or able to press a claim in court, most cases are settled out of court, and perhaps there is not so much software piracy after all; or a combination of all of them. This paper does not try to answer the question of why there are so few cases. Instead, it presents the bare facts from the existing cases and categorizes the source of the piracy, i.e. how did the pirate or alleged pirate come to possess the software in the first instance and what happened to him or her. The presentation of cases here is not complete, for the legal reporting systems are also not up-to-date. Indeed, the phrase, “software piracy” does not appear in legal reports' indices, nor legal dictionaries. More research is needed, but the patterns found in the 31 cases here will probably continue as the sample increases. From such patterns, software owners and legal practitioners can better see what they are up against.