I'm reminded of an old story. A poor and hungry man walked by a street-vendor's stand, with cooking meat, it smelled delicious. He stood there inhaling the odor. The vendor demanded that he pay for the privilege of smelling the food. When no payment was forthcoming, the vendor called the police and insisted that he and the alleged odor-thief be taken before a judge.

Before the judge, the vendor insisted that the poor man had deliberately enjoyed the odor of his food and had refused to pay for it.

The judge thought about this for a bit, then he asked the poor man if he had any money. The reply was, "Just this coin." "Hand it to me, said the judge."

Then the judge asked the vendor to approach the bench. He held out the coin, but when the vendor reached to take it, the judge said, "No, I'm only allowing you the smell of his money."

Copyright is a statutory invention. There has been a major effort on the part of businesses which depend on copyrights to equate copyright violation with theft. It may be a tort, in some cases, but theft it is not. In theft a tangible is removed from the possession of its legitimate owner, the owner suffers a clear loss. With copyright violation, of the kind where someone uses software without permission or downloads a piece of music without payment or permission to the copyright owner, the owner has not lost anything; that is, the position of the owner is the same as if the violation had not occurred.

However, Microsoft, the RIAA, et al, will claim that they have "lost" so many billions of dollars, basing this on the supposed lost revenue, generally calculated as if all those illegal users had paid for the software or music. But it is not at all clear that *anything* has been lost; in some cases it is quite possible that the income of the owner is greater because of the "theft." For example, the most often illegally used software is undoubtedly operating system software sold by Microsoft. Whenever a user buys another computer without an O/S and installs a previously-owned copy of Windows on it without deinstalling it from the user's previous computer, that's a license violation. But did Microsoft lose any money because of this? Sure, if the user went out and bought another copy of, say, Windows 2000, Microsoft would have made some more money. But the user who is likely to keep using a license like this is not so likely to buy another copy; rather, he or she might instead uninstall the system from the other computer, replacing it with, perhaps, an old copy of W98 from an even older computer that isn't going to be used. Or might simply junk the old system.

Microsoft has changed the possibilities by its new multiple-installation prevention system in XP. In other words, Microsoft has made it impossible to "steal" XP like this. Now, has preventing this "theft" increased their income? I do wonder.... Certainly their income has not skyrocketed as it would have been predicted if the now-impossible "theft" were actually theft of income. My guess is that the sales of XP has been hurt by the new protection. How much, I don't know.

It happened years ago that I used a copy of a Microsoft program, taken (with permission) from an employer's copy. That was certainly a copyright violation. But did Microsoft suffer a loss? Definitely, they gained. Why? Because when I wanted to upgrade, I bought the next revision, and the next, etc. Now, if I *hadn't* become familiar with the program, if I hadn't made that violating copy, what would I have done? I would *not* have gone out and bought the Microsoft program at the start. At the time, I couldn't afford it. I'd have made do with something else. And I'd probably have continued with something else.

Now, as to the present occasion for all this verbage: as has been amply stated, there is a tendency to use the term "illegal" to refer to activities that might violate an explicit or implicit contract. It is a bit sloppy. Generally, it is not illegal, per se, to violate a contract. Rather, it is a tort, a harm. Because it may be possible to recover damages, we may speak of the action as illegal. But if there are no damages, if I am correct, normally there will be no recovery. Copyright violations may be an exception, but only because of the statutory peculiarities of copyright.

But it's not copyright I'm discussing now, it is the right of the employer to (1) consent or withhold consent to the outside use of the program by the employee, and (2) consent or withhold consent to moonlighting by the employee.

(We don't know that the employee is considering moonlighting, it is merely possible from what he wrote. He might only be employed part-time.)

Clearly, the employer has those rights. However, if the employee does not give the employer those rights, if the employee, without permission, uses the licensed copy of Protel assigned to him for other work (presumably on his own time), if the employee takes on other work evenings and weekends, it's pretty unlikely that the employer, finding out, will be able to collect any damages, and definitely, even if there was an explicit contract provision prohibiting such behavior, the employee is not going to be criminally prosecuted. So I'd find it inappropriate to call the behavior "illegal." It might or might not be less than ethical. *In general* the best ethics would require that one obtain consent for both of these behaviors, but people face, sometimes, harsh realities that might militate against this. Neither behavior is a clear tort, the moonlighting being the most likely activity to be damaging; yet it is the employer's responsibility to monitor the on-the-job behavior of the employee. If the employee is performing the requirements of his job, that he might have done better without the moonlighting is an intangible and speculative loss. Perhaps if he wasn't moonlighting, he'd be drinking in a bar, perhaps he'd be coming to work hung over. In other words, he might possibly be performing *better* because of the moonlighting. For one thing, he's likely to become a better designer, gaining experience and skill more rapidly. In other words, in some ways the employer might be *benefiting.*

If I were in this man's shoes, I'd first think of asking permission. Only if I expected that permission would be denied *and* I badly needed the extra income would I consider going ahead without permission. And in this case I'd be looking for another job as soon as possible. I wouldn't want to work any longer than necessary for someone who I expected would not consider my needs.



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