BSA Jumps Onto The Three Strikes Bandwagon

from the with-some-weasel-words dept

Mon, Aug 31st 2009 5:57pm — Mike Masnick

So, this was really weird. I was having an instant messenger chat with a colleague here about the various "three strikes" proposals that have been popping up around the world, and he asked me whether or not the BSA had taken a stance on the issue. I noted not remembering hearing anything from them on it, and assumed that it was because the BSA mainly focuses on business users, for which a three strikes policy is not really an issue, and that the BSA would hopefully realize that cutting people off from the internet would almost certainly hurt the software industry a lot more than help it. But, literally 10 seconds after I sent that last text, I flipped over to my RSS reader and up popped an article about how the BSA has come out in favor of a three strikes plan. Freaky.

Guess I should have known better than to assume the BSA was smarter than the RIAA on this issue. As the article at Ars explains, the BSA tries to put in a bunch of caveats about due process and judicial oversight, but spends a bunch of time in its statement explaining how ISPs can get around all that due process and judicial oversight by simply putting three strikes into their contractual language -- meaning that they can just decide on their own to cut users off. Good luck with that.

More troubling, however, is that when questioned about the new statement by Ars Technica, the BSA said it was necessary because "last year our industry lost over $50 billion (USD) worldwide." Hmm. It's really quite troubling that the BSA still stands by these numbers when they've been debunked so thoroughly over and over again. They count the "retail value" of every piece of software as being "lost," which is clearly a lie. Five years ago, the research company that runs these studies for the BSA, IDG, flat out said that the BSA was wrong in claiming that "the retail value" of the software is the same as "losses." So why does the BSA continue to get away with claiming it?

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Filed Under: contracts, copyright, software, three strikes
Companies: bsa

19 Comments

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Anonymous Coward, 31 Aug 2009 @ 5:58pm

"DG, flat out said that the BSA was wrong in claiming that "the retail value" of the software is the same as "losses." So why does the BSA continue to get away with claiming it?"

It's on the same level as claiming that all the thieving of software has NO effect. The black and white end of the shit stick.
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Yohann, 31 Aug 2009 @ 6:21pm

I dunno
I did some contractor work for several clients in which contractors were allowed the use of their own laptops. Older, more experienced ones like myself had legal copies that were paid for (I usually only use opensource on a Linux platform). Some of the younger crowd often bragged about every piece of software on their laptops from the OS to the publishing software was 'downloaded'. Stuff like that is impossible to track, especially when the contractors are only working for 1-6 months and they're off to another client.

However, it's not hard to see why they did that. Most software they needed for the job was much too expensive for them to afford in the first place. Not to mention, the companies never stated that contractors all had to use legal software, at least in the contractual agreements. I've heard rumors of some people using $8,000 software for just one license in which they didn't pay for. Those are usually the people I try to stay away from for good reason.

Just seeing that sort of thing in one place means it's most likely happening in a million other places. That's a lot of freakin' money.
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Patrick, 31 Aug 2009 @ 6:41pm

"So why does the BSA continue to get away with claiming it?"

I am assuming that's not a rhetorical question.
We have media etc that will accept and parrot their press releases without question, and elected officials who gladly do their bidding in exchange for campaign contributions and other favors (read bribes).
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Reed, 31 Aug 2009 @ 6:50pm

Re: I dunno
"Just seeing that sort of thing in one place means it's most likely happening in a million other places. That's a lot of freakin' money."

But you said yourself many of these people don't even have the money to pay these ridiculous costs for software in the first place. You can't count money that just isn't there to begin with.

The only way I could stop this sad cycle with myself and my friends was switch to Linux and use open source applications. The reality is the majority of people cannot justify or afford the inflated prices for software.

I for one am glad people pirate software. Are we to create an artificial economic barrier to the computer industry by keeping out those who can't afford to play? Sounds very oppressive to me and the solution is as simple as lowering the price to something people can afford (even if that price is zero).

After seeing how the software industry has treated the end user it is obvious they don't care about anything other than lining their pockets. Value has gone down and profits have gone up. The only solution to the madness is to switch to open source and give the power back to those who deserve to have it.
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Yohann, 31 Aug 2009 @ 7:05pm

Re: Re: I dunno
"But you said yourself many of these people don't even have the money to pay these ridiculous costs for software in the first place. You can't count money that just isn't there to begin with."

Very true. But the software they use has a cost set by the software companies that create them. They have to pay their engineers, programmers, and technicians too as they have families to feed. My feeling is, if you use it for business use, then you really should pay for the licenses. If you can't afford it, go open source (which I'm a strong supporter of anyway).

"The only way I could stop this sad cycle with myself and my friends was switch to Linux and use open source applications. The reality is the majority of people cannot justify or afford the inflated prices for software."

Good to hear! I like hearing about more people supporting open source. First thing I did with my new laptop was to strip off Vista and install Linux.
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Lawrence D'Oliveiro, 31 Aug 2009 @ 7:18pm

For These Amounts, They Can’t Afford To File Lawsuits?
If the figures at stake really are as large as the BSA etc claim, then surely it would be very much worth their while to file lots of lawsuits against alleged infringers, wouldn’t it? After all, the expense of the suits would be more than made up from the losses averted. So why are they still trying to get others to take over the burden of enforcement of their own intellectual-property rights? Isn’t property supposed to be something that you, the owner, are responsible for, and nobody else?
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Haha, NOOBS, 31 Aug 2009 @ 7:28pm

At least no Lawsuits
I say, this is bad idea, but look at it this way. No lawsuits. Its not going in the path of the RIAA which is good. I rather want someone to get there service cut off rather then get fined 3k settlements or 150,000 usd in court order...
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Anonymous Coward, 31 Aug 2009 @ 8:26pm

ISP's don't want to cut off subscribers
I have to laugh every time I see a proposal that assume that ISP's will voluntarily cut off 3-strike users. For most ISP's, each user is worth something like $600 to $1,500 per year. With the infrastructure in place to serve the rest of the neighborhood, the marginal cost of supplying one more customer with broadband is fairly small.

I can't see any ISP wanting to give up customers willingly unless something worse is hanging over their heads.
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Pjerky, 31 Aug 2009 @ 9:30pm

I can see some irony to this...
You know, if some how they pass a three-strikes law akin to the one in France, wouldn't it be ironic if all those that have been victimized by their heavy-handed policies filed complaints with the BSA's ISP and got them disconnected. Maybe, just maybe, if this happens to enough of the three-strikes supporters then it will finally fall apart and be abandoned.

As for the customer perspective, I guarantee you that if you have other services from the same company (voice, TV, cell-phone, etc) that they will still expect you to remain a customer of their other products after disconnecting you from the Internet. I for one would tell them to take their services and put them up a dark dank place. If ISPs do try this then there will be a lot of lost customers.
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Anonymous Coward, 31 Aug 2009 @ 9:38pm

How easy it is to proclaim "BSA's stats are bogus" without offering your own stats.
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Mike Masnick (profile), 31 Aug 2009 @ 10:37pm

Re:
How easy it is to proclaim "BSA's stats are bogus" without offering your own stats.

Very easy. Because it's accurate. There's nothing wrong with claiming stats are bogus without offering up alternative stats. You can simply go through the methodology and note the problems with it.

I'll note the irony, by the way. You post comments on plent of articles here denouncing the business models we show work every day. And yet you've never offered an alternative. Funny stuff.
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Ilfar, 1 Sep 2009 @ 12:38am

Re: Re:
Here's a stat - If it's not worth buying when it first comes out (usually price higher than I'd be willing to pay for the software) then I'll generally wait till it hits the bargain bin prices and pick it up for 5% of the price.

If software costs more than $200, then it's NEVER worth buying in my opinion. If I manage to find a pirated copy of it and use it for non-commercial purposes, why should that be counted as a lost sale? (except maybe at that bargain bin price)

On that note, I think someone using copied softare for a commercial purpose should be counted as a lost sale - either that person would have found a way to buy it, or someone who did buy it would be doing the job. Using copied software commercially just means they were too lazy to find an open-source or cheaper equivalent, I wouldn't want someone that lazy doing anything critical for me...
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Richard, 1 Sep 2009 @ 2:43am

Usage
The thing is that software is sold per seat. This is fine for organisations that have people who use the software all the time - but the price often looks punitive to those whose usage is more sporadic.

I doubt if, even on the BSA's figures the total amount of USAGE exceeds number of packages legitimately sold x 24 x 7.

Having said that why would anyone pirate business s/w these days? The free alternatives are there so I see not reason to illegally install new business s/w. Most of what happens now could be called "legacy piracy" - involving (technically) illegal reinstallation of old s/w on new machines. Often this happens because the old s/w is no longer legally available and the main cost being avoided is not the price of the software but rather the conversion costs (retraining, file conversion etc).

I have been doing this with Lotus Improv for years - bought legit in 1993 - would buy a new version if I could (8.3 filenames are a pain) but the software got dropped for being too good (see how this wonderful copyright thing helps the market to provide good s/w)
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Rich Kulawiec, 1 Sep 2009 @ 4:22am

Just blacklist the BSA and be done with it
I permanently blacklisted their domain, firewalled out their address range, and instructed the post office to refuse all mail from them years ago. I took these steps after repeatedly receiving threatening letters from them despite the fact that 100% of the software in use here is free/open-source, and is being used in accordance with applicable licenses (GPL, BSD, etc.). I recommend the same for everyone else: the BSA is expendable.
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not this time, 1 Sep 2009 @ 4:44am

Re: ISP's don't want to cut off subscribers
If my ISP start doing their own 'pre-emptive' 3 strikes policing then I'll select a new one, and I can think of plenty of others who will do the same

This isn't even because I occasionally download stuff (I do, mainly legal but occasionally also old recordings that I can't get in the shops which probably isn't), it's because an ISP who engages in this sort of thing is going beyond their remit.

I've spent years in IT and ended up as a result dealing with my not only own ISPs, but my friends, families and neighbors whenever there are problems. I can think of many things to call the various helpdesk agents, managers and customer services reps I've spoken to in this time, but in general 'competant' is rarely one of them. In my experience ISPs hire such stunningly useless staff that half the time they fail to be ISPs - what makes them think they could ever be effective copyright/IP police?

Seriously, are the same bunch of people who I've personally known activate ADSL on the wrong line, send out bills for excess downloads of millions of terrabytes in a month, and who often make themselves the most complex, time consuming aspect of moving house, going to effectivly monitor the murky world of legal vs illegal downloads, public vs private domain material, expired vs active copyright and licensed vs unlicensed usage?

Don't make me laugh.

And that's without the same numpties adding in their usual brand of idiocy, cutting off the wrong people or just flat out confusing one file with another, not to mention all the other aspects that can go wrong with hijacked wifi or public connections.

One other thing's for sure - if an ISP is going to start its own policing it will increase the cost of their operation and therefore the cost to its customers (or reduce the quality somewhere else), further reducing my incentive to stay with them.

So my advice to anyone would be if your ISP starts policing a 3 strikes policy, go elsewhere for your internet services.
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Anonymous Coward, 1 Sep 2009 @ 5:23am

Re: Re: ISP's don't want to cut off subscribers
Now, to be honest, you can't always blame the first contact reps. They have a set of demarcations they /have/ to follow, and in my experience having been on that end of the phone customers can drive even the best agent to abject stupidity.

Yes, you /might/ be an intelligent and experienced computer user. Good for you. Now come and tell the agents how the entire network is set up. The thing is that you can't, because each network is different, because network engineers are as poncy and egotistical as a runway model.

Those first tier agents are usually people off the street because they're just there to route issues. Move up a tier or two, and there you've got problems. People who breezed through the monkified (that's the ook ook factor) computer skills courses that are years behind because the educators don't keep up with the technology.

In the end, the biggest problem isn't just them or you. It's the idiots in the suits that never talk to a customer, never deal with the networks. They deal with each other and dollar signs.
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Richard, 1 Sep 2009 @ 5:33am

ISP's don't want to cut off subscribers
Don't they?

BT Internet cut me off a few years ago for exceeding their usage policy - they claimed to have sent a warning message to an obscure email that I was supposed to monitor - but which wasn't one of the ones we actually used (no way of verifying after the cut off of course).

They also made very sure that we couldn't get back in touch with anyone to argue the case - I would have had to take them to court to get anything beyond a "stock" answer.

As far as I could tell my only crime was to reconnect quickly after they cut me off (at the standard 90 minute point - this was in the days of dialup). The claim was that I "must have been using an automatic system and therefore breaking their terms of service" - which I wasn't.

Of course I was able to easily switch back to my previous provider (demon) who had realised that BT were cutting a lot of people off - and were actively canvassing to get their business. But in the world of "three strikes" I would be on a blacklist and my guess is that I would have to spend quite a bit of money on lawyers to get any sort of hearing at all.
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Anonymous Coward, 1 Sep 2009 @ 7:34am

Re: Re:
Very well, if it is the methodology that is flawed and this is what is causing bogus stats, then what kind of a methodology would be calculated to provide more accurate stats?

The only business model I recall asking about concerns software per se, including the gentleman who a year or so ago was so roundly criticized for a matter involving his selling of custom scalable fonts.

Of course business models abound, limited only by the imagination of people. Some succeed quite well, while, like any business, some go down in flames. However, one should not in my view ignore the fact that there are presently existing business models that are in part based upon our current bodies of law. Movie companies and music labels are routine criticized for relying upon them (some criticism for good reason and some less so). One part of the problem in such companies trying to adapt is that because of the legal landscape a wide variety of contracts subsist domestically and internationally that make this an extremely difficult task. As those contracts start to wind down then perhaps movement will be seen to adopt newer business models. But, until then there is little choice to continue lest constant litigation re breach of contract become the norm.

Importantly, I am neither pro nor anti IP. While I do believe that in many cases patents and copyrights do hold promise for promoting progress using even your definition of "progress", that does not mean that I am a rabid supporter. All it means is the law is what the law is, and until changed an attorney would be guilty of malpractice to ignore same when advocating the cause of a client, be it a rights holder or an alleged infringer.

Please bear in mind that the above is a very broad generalization and not intended to provide any definitive guidance since facts vary so widely from case to case.
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Alex, 1 Sep 2009 @ 10:11pm

Re: Bogus stats
Well, the problem is that nobody has a methodology of estimating the loss due to piracy. At best, figures are taken off the blue sky and they should be treated as such.
Consider that even the issue of pricing the software right is an impossible one to solve. See below article for an insight to the complexity of the problem. http://www.joelonsoftware.com/articles/CamelsandRubberDuckies.html
To go with a straw man, how do you compute loss due to piracy if you sell a product for $20k that 1 billion of people use illegally? Is that worth 20 trillion bucks? That's more than the whole US's GDP!
See how silly BSA figures are now... You can't claim figures of lost sales, because those figures are taken out of reality - they have no economic basis. If anyone could print valid money, then maybe those figures would make sense. But as such, these are just fancy numbers tossed to impress gullible people.
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