If Software Companies Ran the Country by Jay Kinney [This essay originally appeared in Whole Earth Review #57 (Winter 1987). It is now both terribly dated and still apt. It can be viewed, perhaps, as ahead of its time. It earned hate mail when it first appeared.]
The Shmoo has returned. You remember the Shmoo, don't you? It was a cute little white colored, squash-shaped cartoon character created by Al Capp in his comic strip "Li'l Abner," in 1948. Shmoos bred like rabbits and could produce any object at the drop of a hat. Since they loved to please humans, they would willingly pump out milk, eggs, filet mignon, caviar, or anything else if requested. At first glance Shmoos seemed to herald the arrival of Utopia. Unfortunately, a plethora of Shmoos meant that people quit their jobs, stopped paying taxes, and civilization as we know it began to degenerate quickly - or so Al Capp sought to demonstrate in his mildly didactic way. In other words, there is such a thing as too much of a good thing. The great funnies-reading public was not so sure. Shmoos were enormously popular and thousands of Shmoo products were bought and sold before the Shmoo fad ran its course. Al Capp supposedly became so sick of Shmoos that he killed them off and banished them from the strip. They popped up again for another short appearance in "Li'l Abner" ten years later, were killed off again and this time were gone for good. Or so it seemed until recent rumblings about software piracy in the computer trade press convinced me that the Shmoo has snuck back - in real life this time. The source of the rumbling is the simple fact that most computer software is nothing more than an array of bits magnetically recorded on thin, plastic floppy disks. This is true of both commercial software (which often retails for hundreds of dollars) and the file disks that store all the information and writing produced by the computer user. That these arrays of bits are easily copied from disk to disk - with a copied disk being virtually indistinguishable from the original - is one of the much-touted selling points for the personal computer revolution. Where the shmoo-factor comes in and software executives begin to grit their teeth is when a PC user decides to make a copy of a commercially-produced program for a friend. Suddenly there are two programs where there once was one, and there's a good cha nce that the recipient of the copied disk will never break down and buy his own legitimate copy. This scenario, which is repeated daily all over the world, is the bane of the software industry, which contends it is losing millions of dollars in potential sales through this penny-ante thievery. All sorts of copy-protection methods are in use to prevent software customers from making illegitimate copies, but nearly every protection method can be circumvented with some patience, cleverness, and one of numero us commercially available copying programs. When similar concerns over rampant copying tore through the music industry a few years back the solution that developed was the levying of a tax on the sale of all blank cassette tapes. The proceeds from this tax are distributed amidst the record compa nies in compensation for lost income. A bizarre form of corporate socialism, perhaps, but it probably beats having stereo-cops busting through our doors in search of home-recorded audio cassettes. The advent of affordable VCRs on a mass scale introduced this now-familiar dilemma into the realm of video. The Supreme Court concluded in this case that folks at home could legally make personal video-tapes of programs and movies that were broadcast o ver the air. However, making unauthorized duplicates of commercially produced video tapes is a violation of copyright and punishable by law, as big FBI notices at the start of most movie tapes remind us. (That this, in effect, makes the FBI into an enforcer for the Mafia, which is reputedly knee-deep in the video-porn business, is just one of life's little ironies, I suppose.) With software the issue at hand is hazier still, since there is no single agreement on matters as elementary as defining exactly what software is. On the one hand, most software programs consist of thousands of lines of coded instructions which tell one's computer to perform in a certain manner. This code, which is written by programmers and consists of a mixture of words, letters, and numbers, is covered by the same copyright laws that apply to other published material. On the other hand, the words, letters and numbers that make up software code are generally combined into algorithms that describe mathematical procedures. Considered separately each algorithm can no more be taken as private property than can phrases like "2+2=4" or E=mc2. Among programmers an elegant algorithm or set of algorithms that address common programming tasks are likely to become community property, and justifiably so. Definitive mathematical answers to recurring questions have traditionally become the property of everyone since they represent an advance in general human knowledge. Be that as it may, unique sequences of coded algorithms have tended to fall under the rubric of intellectual property fostering their controlled dissemination and retailing by the individuals or corporations that own them. In an information economy it is information that becomes the most precious commodity. Where things begin to get weird, however, is with the subtle redefining of both economic and wider social relations that the present software situation introduces. This redefinition, which is subtle yet far-reaching, is almost never acknowledged by the software industry or computer press despite the fact that it is at the root of the so-called software piracy problem. In making copies of software programs for their friends, thousands of normal citizens have not suddenly become moral degenerates and lawless nihilists. Rather, they've been resisting the encroachment of a new form of property relations which runs counter to common sense and the best human instincts. In their desire to have their cake and eat it too, software companies are actually lobbying for a new form of legalistic capitalism whose overt operating principle would be Caveat Emptor. What would life be like if software companies ran the country? Perhaps the following little drama may offer a clue: Having recently noticed that the bushes outside your living room window have grown unruly you decide to trim them. Your old hedge-clippers having long since succumbed to rust, you decide to run over to the nearest hardware store and buy a new pair. At the store the following dialog ensues with the eager salesman. "How are these hedge-clippers? Pretty good?" "Oh yes sir! They are the best on the market. They are twice as sharp as any other clippers and are greased at the joint to work faster than any clippers ever made!" "Well, that sounds pretty impressive. How much are they?" "Just $450.00, sir!" "Hmm. A bit pricey perhaps. I presume they have a good warranty?" "The best, sir! You'll be excited to know that their warranty offers absolutely no guarantee that they will perform as described. But that's not all! Should you be dissatisfied with these clippers you cannot get your money back! And best of all, you cannot legally resell these clippers to anyone else! In fact, your $450.00 merely buys you a license to use these clippers. Should you violate any of the other terms of the warranty contained in this sheet of tiny print, ownership of the clippers will revert to the manufacturer and you will be liable to prosecution." "By jove, that sounds like the best deal I've been offered since I purchased the Brooklyn Bridge a few years back! I'll take them!" Back home again you set out to trim the bushes. Things are going along smoothly until the clippers let out an unexpected series of beeps and collapse in upon themselves. Consulting the 100-page manual which you had been hoping to ignore up 'til now you discover that you may have run into a "bug" which resides in this series of clippers. Phoning the manufacturer you discover that by sending back the clippers along with an additional $25 they will send you an updated pair of clippers without the "bug". A llow 6 to 8 weeks for delivery. This is less than thrilling but you have little choice it seems, so you send in the clippers along with a check and wait a couple of months. Once the new clippers arrive you return to trimming bushes that have begun looking like mutant growths from Venus. Within an hour or two the job is done and you are about to go hang up the clippers in the garage when your neighbor, Joe, stops by. "Hey hey! New clippers I see!" "Don't ask." "Eh? I was thinking that I ought to trim those shrubs of mine that have been hanging over onto your driveway for months now. If you'll lend me your new clippers I ought to have them polished off in a jiffy. Okay?" "Sorry, Joe. But it says in my clipper-owner agreement that went into effect the moment I began using the clippers that these clippers can't be used by anyone besides me. If I let you use them we'll both be taking food out of the mouths of the company that makes these clippers and turning ourselves into felons in the process!" "Gee, sorry I asked! But, hey, what if I buy the clippers from you for five cents and when I'm done with them sell them back to you for five cents? Surely there's no harm in that?" "I'm afraid there is, Joe. Any change in ownership violates the warranty and I'd never be able to obtain a future update if the clippers unexpectedly collapse. Besides, I don't really "own" these clippers I only have the right to "use" them and that right is non-transferable. C'mon, be a good American and buy your own pair!" "Thanks for setting me straight, pal! If it weren't for honest citizens like you I can see how we'd rapidly slip into a state of criminal anarchy with uncontrolled sharing of commodities! Well, I'm off to the hardware store to purchase one of those beauties!" While most software companies may howl about the illegality and injustice of unauthorized copying of programs - a complaint that is not entirely without merit - they are simultaneously engaged in a anti-consumer campaign of guerrilla warfare worthy of the Contras at the Nicaraguan border. Computer software (and hardware) warranties are among the least protective in the marketplace; in fact, they are mostly legal documents designed to disengage the companies from any but the most minimal responsibilities to their customers. The disjunction between the claims of most software advertising and the terms of the actual license agreements is almost total. Note the following verbatim quote from a typical agreement: "Limited Warranty: The program is provided "as is" without warra nty of any kind. The entire risk as to the results and performance of the program is assumed by you. Should the program prove defective, you (and not [Software company name] or its dealers) assume the entire cost of all necessary servicing, repair or correction. Further, [company name] does not warrant, guarantee or make any representations regarding the use of, or the results of the use of, the program in terms of correctness, accuracy, reliability, currentness, or otherwise; and you rely on the program and results solely at your own risk." Were most of us to be handed such a "limited warranty" for any other product or industry we'd consider ourselves the victims of a crass practical joke or worse. Yet this is the norm with software companies. In similar fashion, the companies' heated opposition to shared ownership — or just plain sharing — of programs is a new wrinkle in the evolution of capitalism. The advent of private property at the beginning of capitalism's reign tended to gobble up pre-capitalist forms of property such as the village commons or peasant communal land, but it still allowed for numerous grey zones of shared property use. Laundromats, taxi companies, mass transit, furniture rental firms, and many other enterprises are all predicated on the assumption that it is both socially valuable and personally profitable to provide access to products and services that people might not be able to afford individually. When was the last time you heard Maytag wringing their hands over how many washing machines sales have been lost due to the prevalence of laundromats? And despite the apparent fact that a Hertz car that is rented out to one hundred patrons in the cours e of a year has, in effect, been "copied" a hundred times, there have been no overt moves by GM to shut down Hertz. However, firms that rent software are coming under increasing fire from software companies whose new model for consumption seems to be "one person per commodity." My observations have led me to conclude that most unauthorized copies of programs are made on the spur of the moment between friends and more often than not are tried a few times out of curiosity and put on the shelf to gather dust (or simply erased al together). Since this is the moral equivilent of taking a friend's new car out for a spin most people don't think twice about it. Estimates of massive software sale losses in such cases are largely specious. Where software publishers may have a legitimate gripe is in the practice at some of our biggest corporations of buying one copy of a program, such as Lotus 1-2-3, and making dozens of copies for clerks in dozens of departments, who then use the program daily. This does represent a significant loss of income in a context far from that of friendly disk-sharing over the backyard fence. While the computer industry may cast itself in the roll of staunch protector of private property — particularly its own — it has few misgivings about profiting from other kinds of unauthorized copying. The burgeoning growth of image digitizers and OCRs (optical character readers) which allow anyone to capture the pictures or words of someone else onto disk, regardless of copyright, is one instance. Commercial on-line databases that are accessible from any modem-equipped computer represent another. This immediate access to others' information is the stuff with which recent dreams of an amazing computerized future have been spun. And it does have its allure. As our culture increasingly moves from print to electronic media - with computers as central processing and distribution channels — all writing, images, coding, or other forms of "information" will begin to shift to a new realm of social ownership where old concepts of property and copyright will be turned inside out. This trend is inherent in the technology itself. Attempts to enforce the old forms of ownership and profit-extraction in the face of this technological drift entail retooling corporations into autonomous intelligence agencies while simultaneously redefining the better human impulses such as generosity and sharing to be criminal acts. One recently developed copy-protection scheme which illustrates this mentality at work would cause destructive software "worms" to be released into one's computer if one tried to make an unauthorized copy of the protected disk. These worms could pop up unexpectedly at later dates randomly destroying other unrelated data and software. Welcome to the era of software publisher as sniper! Yes, the Shmoo has returned and is turning Silicon Valley into the Valley of the Shmoon, despite the loud protests and desperate schemes of the software companies. For, you see, software is shmooware and it loves to reproduce.
