Why History Needs Software Piracy

How copy protection and app stores could deny future generations their cultural legacy.

By  |  Monday, January 23, 2012 at 1:12 am

A more practical approach for a software library would be to liberate the data from fixed media and store it in arrays of redundant hard disks. Librarians could upgrade the arrays over time to avoid obsolescence, and the software could be painlessly transferred over a network to be run on emulators (which would simulate the original software platforms) for historical study.

Unfortunately, the practical approach doesn’t work because it’s currently illegal under US copyright law to copy software — a necessary part of freeing it from its original media — and then share it with the public without the publisher’s permission. (The law provides for legal backup copies, but you can’t share them with other people.) Moreover, it’s illegal under the Digital Millennium Copyright Act (DMCA) to circumvent copy protection schemes to actually make those copies in the first place.

Right now, there exist libraries that store floppy disks on their shelves as if they were books. These organizations make the mistake of assuming that, like books, the data on computer disks will last indefinitely if carefully shielded from the elements. But there is nothing they can do to ultimately stop the loss of data. The data needs to be copied onto a new medium. At some point, the law needs to be broken — or changed.

Copyright’s Obsolete Legal Assumption

Current U.S. copyright laws have good intentions, but they ultimately jeopardize the survival of digital property because they do not take into account the rapid pace of digital media decay and obsolescence.

Our body of copyright law makes a 19th-century-style legal assumption that the works in question will stay fixed in a medium safely until the works become public domain, when they can then be copied freely. Think of paper books, for example, which can retain data for thousands of years under optimal conditions.

In the case of digital data, many programs will vanish from the face of the earth decades before the requisite protection period expires (a period of 95 years for most software published in the U.S.). Media decay and obsolescence will claim that software long before any libraries can make legal, useful backups.

A potential solution would be to limit copyright terms on software to a more reasonable period of time — say, 20 years maximum. Then archivists would have a far greater chance of properly retrieving and storing the old software before it deteriorated into oblivion.

It should also be permanently legal for librarians to circumvent copy protection schemes to archive software. Currently, limited exemptions to the DMCA provide temporary DRM-breaking provisions under very narrow circumstances, but that is not enough.

As an alternative, a new law could require publishers that seek copyright protection to deposit DRM-free versions of software to the U.S. Library of Congress for media-independent archival. The software could later be digitally “checked out” on a limited basis by patrons doing research. If necessary, these digital library materials could become available only after a period of time, say five years, to further protect commercial interests

Don’t Let Software Disappear

We live in a civilization dominated by commerce and those who benefit from it, so we instinctively want to protect those who fairly engage in business. There are those among us who, in pursuit of that goal, would like to assault piracy with heavy-handed legislation. But piracy, which is endemic to and inseparable from digital distribution, can never be fully controlled without depriving freedom. Legislation that attempts to do so will only drive the practice further underground while punishing those who don’t even engage in it by crippling the technology that allows software to exist in the first place.

The Four Forces of Software Decay

There are four main techno-cultural forces pushing software toward extinction.

Force 1: Physical Decay

No form of digital media holds data forever. Every computer data storage medium physically deteriorates over time, losing data in the process.

Force 2: Medium Obsolescence

As technical innovations continue, every storage format will become obsolete and rarely used at some point, making retrieving the data in the future difficult.

Force 3: Copy Deterrence

For economic reasons, software publishers have historically tried to deter users from copying the publisher’s software without permission. These methods prevent the legitimate archival of software.

Force 4: Economic Obsolescence

Every software product has a limited market lifespan, which is the result of rapid technological progress. This means that software will only be duplicated and distributed commercially for a short period of time.

At the moment, you can obtain just about any entertainment work or software program for free if you try hard enough. Despite that, millions of people still pay real money to obtain legal copies of software, films, and music, in the process making those industries bigger and more profitable than ever.

The fact that people still buy access to digital media in large numbers means that piracy is simply not the problem they think it is. In fact, piracy is itself the solution to another problem: the problem of over-protected intellectual property. It would be wonderful if those companies utilizing strict DRM and pushing for aggressive anti-piracy legislation saw the need to be a little less profiteering for the greater historical good, but since that is rarely the objective of the free market, don’t hold your breath.

It is up to us, as a generation, to preserve our cultural history. We must also push for reforms in copyright law that allow software to take its rightful place in historical archives without the need to rely upon the work of pirates.

If you love software, buy it, use it, and reward the people who make it. I do it all the time, and I support the industry’s right to make money from its products. But don’t be afraid to stand up for your cultural rights. If you see strict DRM and copy protection that threatens the preservation of history, fight it: copy the work, keep it safe, and eventually share it so it never disappears.

Some people may think ill of your archival efforts now, but they’re on the wrong side of history: no one living 500 years from now will judge your infringing deeds harshly when they can load up an ancient program and see it for themselves.

Benj Edwards is a historian and freelance journalist who specializes in video game and computer history. He is also editor of Vintage Computing and Gaming, a blog devoted to those subjects.

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53 Comments For This Post

  1. Bob Says:

    You should run for office. You'd fit right in. Your's is the new logic that suckers people into submission through rhetorical verbosity.

  2. @crccomputer Says:

    Excellent Topic

  3. The_Heraclitus Says:

    "Libraries everywhere would be devoid of Homer, Beowulf, and even The Bible without unauthorized duplication."

    You are conflating data with programs in this article. The examples above are thus, bogus.

  4. Steve Lovelace Says:

    Amazing article, Benj. the scary thing is, this no longer applies to just software. Imagine the same with ebooks. A whole generation of movies, music, books and software could be lost to obsolescence.

  5. Benj Edwards Says:

    Programs are information too, stored on a data-bearing medium just like Beowulf. Both need to be duplicated to survive.

  6. Exec Says:

    Um, no. A program is NOT like the story of Beowulf. A story can exist in any info medium. A program is entirely different. The data stored in a spreadsheet is different than the program. There is no meaningful cultural legacy to Lotus 1-2-3. It is simply an obsolete program. Do you even know what Beowulf is about? Apparently not if you are comparing that to a defunct computer game…

  7. Benj Edwards Says:

    I am not comparing the literary content of Beowulf to software. The content is irrelevant in this particular analogy. The exact medium is also irrelevant. Both are stored as information on mediums that decay over time, requiring duplication to preserve them.

    Don't confuse the computer science definitions of "data" vs. "programs" with the storage of raw information on a medium. The information is there regardless and it needs to be copied to survive.

    Re: "There is no meaningful cultural legacy to Lotus 1-2-3. It is simply an obsolete program." That kind of attitude is why software is disappearing, and why its legacy is in jeopardy. In the piece, I argue precisely why obsolete programs are important to our understanding of history. You should read it some time.

  8. Perc Says:

    This is the best argument I've yet seen in favor of digital piracy. It also provides more support for the argument that such piracy does not constitute theft, because it adds rather than subtracts.

    Would any gamer argue today that "Super Mario Bros." and the original "Final Fantasy" are just "obsolete software?" I suspect not, and yet that is exactly what they were considered in, say, 1994, when you could buy copies of them for pennies on the dollar. The cultural relevance of any media, software or otherwise, is not necessarily apparent during its commercial lifespan. History requires taking a long view and a detached perspective, and I think you've argued these points very eloquently in this article, Benj.

  9. litbrarian Says:

    Benj, this is a great article and a subject that really needs to be addressed. The current copyright laws are ridiculously long (especially if you count a company as a legal person, add on the 70 years, and THEN find out that public domain works can be re-copyrighted…) and it's unfortunate that the very thing that has made the technology great (iteration at a rapid pace) is also working against its preservation because, as Exec mentioned above, nobody seems to think things that will in aggregate prove historically significant down the road, are worth saving right now.

    I'm an archivist who has been seriously thinking about getting into digital preservation (whether game/software preservation or personal digital preservation) and right now there's preservation efforts, but archivists and librarians often lack the resources and skills necessary (not to mention the obvious legal concerns) to do what needs to be done. I can't program an emulator and I'd be hard pressed to find an archivist who could.

    But back on point, thanks for writing a post on the subject. I'll definitely be following your blog.

    -Collin
    Archivist

  10. Stephen Says:

    "There is no meaningful cultural legacy to Lotus 1-2-3. It is simply an obsolete program."

    This is a chilling statement to me. Should we discard all the stone arrowheads we find? Aren't they obsolete? Or how about all those lame Roman artifacts? Gosh darn it, those chariots are completely obsolete as well. Chuck 'em!

    Obsolescence has absolutely *no* bearing on cultural legacy.

    I applaud this article for both its perspective and its help in popularizing the notion that large forces are actively preventing the preservation of the artifacts that continue to transform the world on a scale like no other in human history.

  11. Exec Says:

    Yes, you DID compare the two. Reread your article. Also, I'm not the one confusing data with pgms. YOU are.

  12. heath Says:

    With all due respect to the care with which this article was written, its premise is unsound. Software that has real value is becomes more widely used and is further developed, evolving over time into something different, and, sometimes, something new. Its use and continuing development are what protect its existence. Software that has low to nil value fades away because there are thing that do what it does, only better.

  13. Judith Haemmerle Says:

    heath, I respectfully disagree. Many excellent games never achieve wide distribution, mostly due to lack of marketing. Indy developers are notoriously poor at bringing their games to public notice. Some of these developers go on to work for larger studios, where their work becomes an important part of history. If we ignore the human stories and the people in the industry, then it doesn't matter. But as the director of a game museum, the stories of the people, a record of their growth in the industry, and the "Oh, look what they did first!" stories are important for the preservation of our cultural history, Consider the vast amounts of material lost to both the movie and TV industries because the studios didn't think it was important. And now historians are mining old, illegal VCR tapes even for the ad content that was preserved. We have no way of knowing what will be important to save, and I am sad to note that in many cases, pirated copies will be all we have of some things. And the history of piracy is, in and of itself, an important part of the culture which will no doubt be studied in the future, if it isn't already.

  14. Commodore Z Says:

    Fantastic article! Software piracy is even more necessary than I had expect, and for enumerating the reasons why that is, I applaud you.

    I can think of many instances where legacy specialty software preservation has been a concern of mine. The most memorable was when I was attempting to view the source code to an open source program that I was studying for a college course. It required the use of an outdated variant of Delphi (an Integrated Development Environment for Object Pascal) to even view the source code, which in turn required some searching to even locate on the web. The company in control of the program changed hands, making it even more questionable as to where that version of Delphi could be found. Thanks to archivists, with means that are denounced by many, I was able to successfully work on the project. I owe them for the A that I earned in that course.

  15. bt9629 Says:

    That's like saying that all classic cars and all info about them should just disappear entirely because they aren't driven. It's not about the usefulness of software or programs. Its about historically recording that they existed. Besides the article focuses not on software programs, but raw information itself. Doesn't really matter the medium its stored on except for the part where digital storage is important in this age. The point he's trying to make is that information needs to be copied and redistributed to stay alive and be recorded in a historical context. It's the exact same reason we back our own stuff up. He's also not really focusing on software and programs anyway, but including them with movies, books, games, stories, info in general etc. His premise is perfectly sound.

  16. bt9629 Says:

    edit: my bad, he focuses on software; but not just programs like office or something. the point, as I said is preservation of any and all information with digital storage (software) being the relevant medium of today. Particularly since there is so much information that is only in a digital form.

    "It's use and continuing development are what protect its existence". Not true, this is what protects its commercial value. It's existence is protected by it being copied, redistributed, and recorded in history, much like the Bible, which has virtually no commercial value (can usually get it for free).

  17. bobtoo Says:

    "..suckers people into submission through rhetorical verbosity."

    You should run too. Unfortunately you'd probably win because you're the master of the ill informed sound bite

  18. Sosarian Says:

    The problem with that logic is that new software often only has limited compatibility (if any) with the old stuff, hardware becomes completely incompatible & the storage medium unreliable.

    For example, none of the diary files from my first computer (an Apple IIgs) can be read at all by modern software, and the system itself is failing; projects I worked on in Windows 3.1 are either in the same category or can only be semi-converted (i.e. I end up losing all formatting, notes, etc. or other components). The only option in both cases boils down to emulation.

    FWIW, people upgrade a lot of software primarily because the new version is either what was installed on their new computer, or because they needed to work with files they/others created other systems using the new version. "New" doesn't always equal "better", unfortunately.

  19. Groulx Says:

    Insightful. And overall true.

    But perhaps software piracy in itself isn't as necessary as much as a "library of congress" for all published software creations. A sanctioned repository. Once a copyright has expired, then the public could access the works in the "library".

    But then again, this would not account for the continued need to inspire hackers to continuously develop more advanced security-defeating techniques which in turns drives the technology industry forward in a very positive and profitable way.

    This is all a flash-in-pan discussion, folks. What has happened in terms of worldwide creative contribution in the past 50 years completely trumps the summation of tens of thousands of years of human history. It's incredible. I look at my VIC-20 cartridge the way I look at a dinosaur fossil. The cartridge is literally millions of years old. But it was from 1981. Explain this paradox.

  20. ziply Says:

    Your comment completely rocks. Good idea, good analysis, and funny finish.

  21. Timmy Says:

    A great article. You made clear why cultural heritage should be easily preserved, and why the current copyright laws are out of proportion.

    There are some other points I’d like to address:

    The truth is, software is already being preserved. In countries with sensible copyright laws. Whether it needs to be preserved in the US is another question. Perhaps they don’t deserve “cultural rights”.

    Secondly, the DMCA currently gives librarians a great opportunity to preserve software. You could say it’s rather limited, but that’s by their own request. The librarians could have asked for a lot more exemptions, but they chose not to.

    My final point is that your suggestion (I hope I’m wrong here, but anyways it’s important enough to mention it again) to make librarians exempt from copyright laws will only create a new Library of Alexandria. That is, when this new Library collapses, all your cultural heritage is lost again. If you really want your cultural heritage to survive, you’d need to make sure there are enough copies of it available in more than one place. Exemptions for librarians only will not do.

    PS. My personal opinion is that, when media companies think their stuff should not be preserved, then it deserves not to be preserved. My own games have much a very simple license, no drm, and it’s copied and being used in many countries, and I don’t mind. Even if no librarians would even consider archiving them, I know they will survive.

  22. rhade Says:

    Another example is the early TV series where copying was difficult and the tapes they were recorded on decay – early Doctor Who for instance and many, many Plays for Today commissioned by the BBC from the now major 20thC playwrights. They were often done live and using unknown actors like Michael Caine. And are gone. Forever.

    Every so often someone digs through an attic or warehouse and discovers a new treasure, and fortunately the tech hasn't changed so much it can't be played and stored in other formats. But these only exist because someone chose to copy or keep the original.

    Shakespeare wrote more plays than were printed but theatre was an oral tradition serving a substantially illiterate audience. That many of his plays survive is due not to him but to 'pirates': a couple of actors who managed to get together enough to produce the First Folio and printers' agents who memorised plays as they were performed and wrote them down afterwards to produce cheap Quarto editions.

    Great piece BTW

    Oh and one final thought: the current music industry owes great thanks to the pirate Radio Caroline playing all the rock non of the land-based stations would touch.

  23. Alsobob Says:

    Hey, you guys are Bob? That's so cool!

  24. Yetanotherbob Says:

    Whoda thunk we'd all meet up here? Small world huh?

  25. bkw Says:

    Proof that knowing $5 words like conflate doesn't mean a thing.

  26. bkw Says:

    Wikipedia "Dr Who missing episodes" The BBC discarded most of the originals as they were not valued at the time. Later they became wildly valued and many of the relatively few remaining episodes only exist at all today because someone somewhere illegally made a copy or failed to return a copy. A guy buys a bootleg 16mm at a flea market and it ends up being the only copy of that episode to exist anywhere today. Thank god for that awful pirate! We are still missing a whopping 106 of 253 episodes thanks to how well the originals were protected. It's exactly the same for software.

  27. CrimsonDX Says:

    I had never thought about things in this way. This was an incredible article.

  28. Till Lindemann Says:

    This was a very insightful article; you've made me see things I had not even considered.

    Thank you.

  29. Jayme Says:

    I find that I support you, even if I don’t support piracy. I understand why companies fight piracy tooth and nail, but some record should be held somewhere.
    Although, I don’t necessarily agree that every iteration needs to be, or even could be archived though. Major revisions most definitely, but honestly certain programs can get updated daily, with no functional difference. The equivalent would be a first printing of a book that had some typos and later printings where the typos were discovered and fixed one by one. While different, the books would be functionally the same.

  30. magiar Says:

    Remember all those reader's code published on magazines. Lots of games supposed to be transcribed to the computer by magazine's readers.

  31. Monique Says:

    That's a very unusual approach, thank you for the new opinion. I loved the floppy discs libraries and loss of data part most of all :)

  32. Picky Says:

    Great article. not long ago I binned a copy of windows 2 assuming ms would have a copy… Maybe they don’t? Also a good site for historical webpages is thewaybackmachine – check it out!

  33. VoiceOfReason Says:

    You are an a-hole…and NO I'm not confusing that with data.

  34. David Lemon Says:

    As I'm sure Benj knows, "Homer, Beowulf, and …[the early books of] the Bible" were created as oral tradition, and survived that way for a long time before being written down. And it's misleading to suggest that their written form survived due to unauthorized copying. In the absence of an author to give or withhold permission, virtually all copies were made with the consent of (and generally at the request of) the book's owner.

  35. Benj Edwards Says:

    Whether they began as oral traditions or not, the books were written down, and then they were copied without the author's permission. Those copies were essential for the work's survival, and so it is with software. As I mentioned in the paragraph below my Beowulf reference, unauthorized copies as such today are illegal because of the shorter period of time involved with software — say, 10 years from date of creation rather than hundreds of years as with Homer, etc.

  36. Benj Edwards Says:

    If I'm an a-hole, then you're a b-hole. Perhaps even a c- or d-hole.

  37. Nathanael Says:

    By the way, even programs start out as files… The files are compiled into executable binaries the computer can run. In fact it would be nicer if the source code was archived.

  38. pman Says:

    spear points and bullets, spear points and bullets

  39. Phil Says:

    Ok, fine, let's say that a "program" is different from data like Beowulf. What about current works of data that are also getting locked under piracy laws? Films, games, e-books, music…all these are data, and they too are being prevented from being copied because of piracy laws, therefore they too run the risk of vanishing from history, even after people have legitimately purchased a physical copy. I agree with the article, even a hard drive has a limted life span, the best way to preserve these things is to continue to copy them. Imagine if oral traditions had copyright laws: only the person who came up or lived the story could narrate it. The reality is that the only good reason for copyright laws is so that the maker can receive more money. While I agree our atrists need support, it's also fundamentally greed.

  40. Phil Says:

    Well said. People don't realise the digital age has exploded because of how quickly and accurately digital information apreads. At the end of the day, the best arguement for copyrighting boils down to money. That in itself should tell people it isn't the way forward.

  41. I am the Bob Says:

    Great article. I really enjoyed the read and it made me think about the significance of these old programs

  42. DFYX Says:

    Exactly what I had in mind and would have posted if you hadn't been faster than me. People (like me) who like the new Dr. Who seasons and want to watch all the old ones will probably never be able to do so. And remember guys, we're not talking about something that was in produced in ancient history. This is a series that is still running today.

    Same problem with the Star Wars Holiday Special. The only copies available today originate from some illegal bootlegs someone made with a video recorder. There might be a master copy left at the Skywalker Ranch but there's almost no chance that there will ever be official copies of the unedited material as it was aired in 1978.

  43. Shprunk Says:

    how does "there are things that do what it does, only better" act as a reason to forget about all the soft-wares and developments that led to those "better" soft-wares.
    That's just like saying the Nintendo Entertainment System is useless because the SNES or Nintendo 64 came out. The Snes and N64 "do what the NES does, only better" yet there are still people in 2012 spending lots of money to purchase NES systems.

  44. Shprunk Says:

    are you honestly saying the Bullets are "better" than spear points. Think long and hard on how the world would be today if gunpowder was never invented. It would be a much cleaner planet for one, as well as no massive world wars threatening to destroy the planet. Of course, it works both ways. Without the invention of gunpowder, a lot of other inventions leading up to the tech age would also not be invented. I guess it's all in your view of things.

  45. David Lohnes Says:

    It sounds to me like you're the one bringing "rhetorical verbosity" to the table.

    If you're going to fault his logic, fault the logic. Make an argument. Don't just use fancy words to name call.

  46. David Lohnes Says:

    There's another option worth considering. Companies can be urged to simply release software they no longer support (or that operates on platforms that are no longer supported like classic Mac OS) into the public domain.

    Bethesda and Bungie, two of the most successful game developers of all time, have taken that approach with the early Elder Scrolls games and with the Marathon trilogy (the precursor to Halo). This approach gains all the benefits of open, crowd-sourced preservation (versus a digital Library of Alexandria) and clears away at one fell swoop all the legal tangles of the whole problem.

    Then there's Electronic Arts, who sends letters of legal threat against websites for hosting games published in 1986. Booooooo.

  47. AC Says:

    One of the requirements for copyright protection for software should be the availability of the full source code for the software.

    No source code available = no copyright protection.

  48. GamerFromJump Says:

    Like everything else, there's a TVTropes pages for this: http://tvtropes.org/pmwiki/pmwiki.php/Main/KeepCi

    A very good example of the author's point would be the TV show NOVA. It's been on for over 30 years, and would thus serve as a good insight into science and the public understanding thereof. Except, problem, only a few dozen episodes have been preserved. Oops. Hope some "pirate" set the VCR.

  49. GamerFromJump Says:

    Like everything else, there's a TVTropes pages for this: http://tvtropes.org/pmwiki/pmwiki.php/Main/KeepCi

    A very good example of the author's point would be the TV show NOVA. It's been on for over 30 years, and would thus serve as a good insight into science and the public understanding thereof. Except, problem, only a few dozen episodes have been preserved. Oops. Hope some "pirate" set the VCR.

  50. John Henry Says:

    Some software piracy I endorse, like old or import games that will never be on sale again or translated, but otherwise people just want free stuff. Even those that can afford to buy what they steal.

  51. Bulk Dried Fruits Says:

    I completely agree with what you wrote in your article. I always take predictions of this sort with a pinch of salt, which in this case is definitely a good thing. To make such bold prediction – even down to a decimal point – for a date three years in the future, and with a past history being wrong, is just sheer idiocy.

  52. michaelknight Says:

    all this historical relevance is beautiful, but even the makers of these "obsolete games" were there to make a profit. If you deny current game developers the opportunity to protect their work, it will in turn become not profitable. Major games of today cost exorbitant amounts of money to produce and you cannot justify piracy based on old floppy disk games. sorry. I will agree that we could have a better system in place, but piracy is an actual problem.

  53. MichaelKnight Says:

    I will grant you that coping the work preserved it for the future, but there is no "author" for Beowulf. you are not helping your case by continuing to push this point.