DIFFICULT MORAL QUESTIONS

Question 138: May one ever violate the terms of a computer software license?

Many computer software programs come with a license to which the purchaser agrees by opening the software package. These licenses generally exclude installing and/or using the program on two or more computers at the same time. However, copying the software and even the instruction books that come with it is easy, and it is hard to enforce these licensing agreements. So, they are very often ignored.

I think most people who use software programs recognize limits to violating the agreements. They would not buy a program, make extra copies, and sell them; nor would they knowingly purchase a program from someone who sold it in violation of the provisions of the license. They would not consider it right for a business or other organization with many employees working at many computers to buy only one or a few copies of a program, and make unlicensed use of it. But I wonder about certain more limited violations.

First, consider a large family with two or more computers. When one family member purchases a software program, it may be installed on both or all the computers in the house, so that all family members use it on occasion. But some—the smaller children, for instance—get very little use from it, and the whole family’s combined use does not amount to that of many individuals who perfectly abide by the licensing agreement. For a family of moderate means, furthermore, the realistic alternative would not be buying two or more copies of the same program, but limiting their convenient use of it, by putting it on only one computer, simply in order to abide by the letter of the licensing agreement.

To be sure, the family does violate the letter of the license. But software makers must realize that many people do this sort of thing, yet they never try to enforce their licenses’ terms in such cases. Doesn’t it seem reasonable and fair enough for a family to buy only one copy of a program and then use it without worrying about the letter of the agreement?

Second, consider a volunteer who edits newsletters for a parent organization, a women’s prolife counseling center, and a parish religious education program, and who also prepares the bulletin and liturgy booklets for her parish. She is not paid for any of this; indeed, the volunteer work costs her money for computer supplies and babysitting. Intending to help her, a fellow parishioner who has upgraded his desktop publishing program gives her the old version—both the program disks and the manuals—which he otherwise would simply discard. The program helps her improve her work and speed it up considerably, and is entirely adequate to her needs.

She does not think using the program is theft. The software maker is losing nothing, and if she were to buy a program now, she says, it would be a different, cheaper one, not the one she is using, which would cost over five hundred dollars. However, she wonders how she would like it if she were in the software maker’s position, and that makes her uneasy. A friend who is a spiritual confidante tells her: “Regard the program as a gift, and the problem, if any, not as yours but as the giver’s.” Her confessor says: “Software makers get rich enough from their sales to users who can charge off purchases as an expense. It’s only fair that the industry and such users subsidize people who donate their services for worthy causes, which are always short of money.”

Analysis:

This question calls for application of the norm excluding theft. Copying, using, or transferring commercially marketed software in violation of the license’s terms generally should be considered theft. Titles to property are not absolute, however, and a poor person or group who can verify that certain conditions are fulfilled is morally justified in violating the terms of a computer software license so as to meet a need that cannot otherwise be met. Again, a person or group that has been treated unjustly by a software publisher and can verify that certain conditions are fulfilled is morally justified in taking fair compensation by a proportionate violation of license terms. Moreover, in some cases the copyright holder’s permission to violate the express terms of the license can be reasonably presumed. Though it is plausible that a software publisher would take a tolerant view of some license violations by families, the questioner argues unsoundly from the absence of attempts by software publishers to enforce their rights against such violations. Again, though the use of an earlier version of a program might not violate the terms of the software license, the arguments offered to justify accepting the gift are unsound.

The reply could be along the following lines:

For a long time, copyright laws have provided authors and/or publishers of books, sheet music, records, films, and so on with protection of their interest in receiving a fair return for their work and other investment that make such items available to those who can benefit from their use. At least in their general lines, copyright laws surely are reasonable, and fair-minded people recognize that they should be respected. Software programs also are protected by copyright laws, but many people who would never copy a book owned by a friend regularly acquire software programs in that way.

This question concerns only commercial software, which is most of the software sold by software publishers, computer stores, and other vendors. However, it will be helpful to understand three other types: public domain software, freeware, and shareware.

The creators of public domain software deliberately give up their copyright and make their product freely available by clearly marking it as such; everyone may copy and use both the software itself and any documentation accompanying it. The creators of freeware retain their copyright but use it to forbid others to profit from their work. Thus, freeware may be copied for one’s own use and also given, but not sold, to others. The creators of shareware offer it for everyone’s free trial, distributing it either personally or through intermediaries who specialize in doing that. However, the intention is to establish a cooperative relationship with those who find a program useful, so that, in exchange for a registration fee, users receive benefits such as bound manuals, updates, technical support, and the opportunity to try additional programs. Someone who makes continuing use of a shareware program without paying the registration fee violates the copyright. While that right seldom is legally enforced in the case of shareware, those abusing it take unfair advantage of the creator’s reasonable offer to cooperate with users.

Companies that market commercial software programs hold the rights to them, having either developed these products or purchased the rights to them. In marketing a program, such companies do not actually offer the software and its accompanying documentation for sale; rather they offer for sale only the use of copies within specified contractual limits, stated in a license. The license packaged with the software usually permits the purchaser to load it on only one computer, and to make only one copy as a backup. (Sometimes a license specifies that the software may be loaded on two computers, provided they never are used simultaneously. Many vendors also offer special licenses to those who wish to use the same software on many machines; it is necessary to contact each vendor directly for information about the availability and terms of such licenses.)

The typical license packaged with a program states that original purchasers may transfer the software and license to someone else only if they give the software up entirely, retaining no copy of it whatsoever. Partly to prevent unauthorized copying, the licensee also is forbidden, without the copyright owner’s consent, temporarily to transfer licensed software by renting, leasing, or lending it to another party.

In the U.S., unauthorized copying of commercially marketed software is a federal crime if done “willfully and for purposes of commercial advantage or private financial gain.”³³⁹ However, even if the copies are not sold but are given away or retained for the copier’s own use, unauthorized copying, though not a crime, infringes the right of the copyright holder, who can seek redress by suing.

What about the morality of this copyright infringement? Except when a property owner’s consent can be reasonably presumed, using his or her property in any way that goes beyond his or her expressed, limited permission is using it contrary to his or her will; and using anything contrary to its owner’s will is the same kind of act, morally speaking, as taking something from an owner contrary to his or her will. Provided the owner’s will in the matter is reasonable—which is to be presumed unless the contrary is established—the using is unfair and constitutes theft. Thus, copying, using, or transferring commercially marketed software in violation of the terms of the license generally should be considered theft. Moreover, such theft generally is a grave matter, because people do not consider most comparable infringements insignificant (see LCL, 319–20).

Many people who would not violate an author’s or publisher’s copyright by copying a book or a musical composition seem to see nothing wrong in making or accepting and using unauthorized copies of computer software. There are at least three reasons for this difference in perception.

First, software licensing is comparatively new, and software makers do not adequately publicize the limits they set on the use of their products; for instance, these generally go unmentioned in advertising and other promotional materials. In the case of other products, documents drafted by lawyers and packaged with them or included in purchase agreements usually limit buyers’ rights to remedies if the product proves unsatisfactory but do not limit their rights to do with it whatever they wish. So, most people never read fine print unless they encounter some problem. Since a software license is virtually unique in limiting buyers’ rights to use the product, many people ignore the license terms and assume that, having bought the package, they are free to do with it as they see fit. It is worth noting that such people lack sufficient reflection, and so their moral guilt for not respecting software license terms is mitigated or even nonexistent.

Second, having bought a software package, many people feel that the restrictions specified in the license are nothing but an attempt by the software company to maximize its profits by arbitrarily limiting their use of it. In one sense, of course, the restrictions are arbitrary—those setting them do so freely, and could (and, indeed, generally do) offer to sell different and broader rights. This arbitrariness, however, is no different from that of the owner of a furnished dwelling who rents it out for specified periods, stipulating in the contract when tenants are to take possession and vacate it, restrictions on the use of appliances and furnishings, and so forth. In both cases, owners have the right to decide how far they wish to go in offering the use of what is theirs in exchange for payment; anyone who thinks the required payment excessive need not accept the offer, but those who, having accepted it, go beyond the stipulated limits take more than they bargained for and purchased.

Third, computer software seems excessively expensive to many people. Perhaps that is because copying a software program, unlike copying a book, costs very little in relation to the price of the original, and the copy—again unlike many book copies—often is almost as useful as the original. But this difference does not show that computer software is unfairly overpriced. The price mainly covers, not the cost of manufacturing the software package, but the outlay for purchasing or developing and testing the product; losses on other, unsuccessful projects; marketing expenses, including advertising, packaging, and shipping; the cost of technical support and customer service; and other business expenses, including legal fees, insurance, taxes, and interest on borrowed funds.

Moreover, two considerations suggest that, with some exceptions, computer software is not overpriced. First, people want software programs precisely because they are powerful tools that save them valuable time and enable them to get results otherwise beyond their reach. The cost of a program seldom is great in proportion to the benefits. Second, the market for the most part is free and competitive, so that alternatives to many successful products quickly appear, and prices usually are held down and often reduced. Competition also has led to rapid improvement in most sorts of software, to the benefit of users; copyright infringement, however, impedes innovation by lessening profitability and thus reducing competition.

Defending limited violations like those in question here, people sometimes argue along the following lines. Software makers surely realize that the licenses’ terms will be widely violated, and undoubtedly they set their prices high enough to compensate for that. Therefore, they cannot reasonably expect customers to abide strictly by the licenses’ terms, for those who did would not only put themselves at a comparative disadvantage but forgo benefits for which they already have paid. However, even when victims of theft can pass on the cost of their loss—as most merchants pass on the cost of shoplifting—the theft remains unjust. If software makers do not bear the cost of license violations, each and every one of their customers does. Violators therefore impose extra costs on software users who either have no occasion or opportunity to cheat, or are conscientious enough not to do so; violators are unfair to such other users, just as shoplifters are to other customers. Then too, since a person normally makes a contract in buying and opening the software package, people who violate the license’s terms usually break a promise; and even though the duty to keep promises is not absolute, breaking them merely to avoid the disadvantage of keeping them is dishonest and unfair.

Still, titles to property are not absolute. As Vatican II teaches: “God has destined the earth and all it contains for the use of all human individuals and peoples, in such a way that, under the direction of justice accompanied by charity, created goods ought to flow abundantly to everyone on a fair basis” (GS 69). This divine plan for material goods is basic, and private property is just only insofar as it implements God’s intention that everyone’s genuine needs be met equitably. Therefore, it sometimes is morally justified to take what belongs to others, even if that is plainly against their will and forbidden by law, because the owners’ will to retain what they have is unreasonable, and taking it in violation of the law is both fair and compatible with one’s other moral responsibilities (see LCL, 824–25, 878–82). On this basis, in certain circumstances some people may, without moral fault, ignore the copyright of a licenser of computer software, just as, in similar circumstances, some people may ignore others’ legally recognized claims to other possessions.

Circumstances of the relevant sort exist in a society whose property system carefully protects the rights of the powerful and wealthy while providing inadequately for the basic needs of the powerless who are poor, with the bad result that the wealthy live luxuriously while the poor, even with parsimony and hard work, cannot meet all their basic needs. Then the poor can be morally justified in violating the law and using or taking what legally belongs to the wealthy, not just to survive, but to meet any genuine need that cannot otherwise be met. Thus, a poor person, family, or other group needing a software program marketed by a prosperous company could be morally justified in obtaining and using an unauthorized copy. Insofar as this justification can exist, the promise given in opening a software package is not to keep the license’s terms as offered by the copyright holder but as amended so as to be fair to the poor. But one should first be sure the conditions that would justify proceeding in this way really do exist.

As in other highly competitive businesses, many companies that market commercial software are not prosperous; some are struggling to establish themselves and some, though long established, are losing money or making little profit. For even poor persons to violate the copyrights of such companies plainly is unfair to all who have a stake in them: employees, customers, suppliers, and owners.

Again, those who can meet their needs by working hard and economizing are not poor, and associations and nonprofit organizations whose resources and capacity to raise money are adequate to meet other expenses do not suddenly become poor when they need computer software. Most people who think nothing of using an unauthorized copy of a software program would never take a program from a store without paying for it. There is a difference, of course—not in the justifiability of the taking, however, but only in the likelihood of getting caught. Upright people do not allow themselves to be affected by that difference and respect others’ property rights even when violations would go unnoticed.

Very often, too, poor people can obtain public domain software, freeware, or inexpensive shareware adequate to meet their needs. Families with multiple computers often can meet their needs in this way, especially because children’s needs usually are limited. Moreover, rather than making several copies of an expensive program, a family often can make do with one copy used in conjunction with an inexpensive or free program. It generally takes only a few minutes to import, check, reformat, and print out in a powerful word-processing program a file a child has spent many hours creating in a simple and cheap program, which might not itself be adequate to generate a satisfactory hard copy.

Circumstances that justify violating the conditions specified in a license for a software program also can exist when the copyright holder has done an injustice to the licensee, and the unauthorized copying and use of the program is appropriate as restitution or compensation (this is an instance of what classical moralists called “occult compensation”). Some companies that market software plainly do treat their customers unfairly: by misleading advertising, failing to deliver products when promised after taking orders and payment, failing to provide promised help, refusing to admit defects in programs that seriously limit their claimed usefulness, making grossly excessive profits from indispensable software on which a company has a virtual monopoly, and so forth. Copyright violation may be the only way that users who suffer such injustices have of obtaining compensation for the harm they have suffered. When this justification exists, it also justifies breaking the promise made in opening the software package. Once again, one must know the justifi~cation’s conditions are fulfilled in order to judge that it exists.

One may not take something to compensate for an injustice unless certain its possessor really has done an injustice. Software users all too often judge a program defective when the problem arises from their own failure to study the manual and learn how to use the program, and some real problems are due to hardware rather than software. Moreover, one generally should not take something to compensate for an injustice without first calling the injustice to the attention of those responsible and seeking voluntary restitution, since by doing that one calls on them to do better and, if they respond suitably, strengthens genuine community with them. Finally, it is stealing to take more than is fair to compensate for an injustice—for example, making for a friend an unauthorized copy of an expensive program on the mere excuse that some rather insignificant feature of it does not work as advertised.

Someone might argue that software users are entitled to violate the terms of licenses in ways exemplified in the question, since virtually all software companies treat potential customers unfairly. The argument would be that, since vendors sell only a restricted license, they should make that policy clear in their advertising. Potential buyers are unfairly treated by advertising that stresses the advantages of products while saying nothing about the severe restrictions in licensing agreements. So, the argument would conclude, while buyers should not grossly violate licensing agreements, they need not abide by their letter.

My answer is that buyers of software who understand the licensing system are not unfairly treated by advertising that makes no mention of the restrictions. Less sophisticated buyers, who learn of the restrictions only after purchasing a software package, have been treated unfairly, even if they have the option of returning the package for full credit, since it is burdensome to buy, prepare to use, and then return a package. In my judgment, such less sophisticated buyers can justifiably violate in minor ways the first licensing agreement they encounter, and nobody who has innocently violated a software license owes restitution for doing so. But experienced software purchasers should not rationalize ongoing violations on this basis.

Besides justifiable exceptions of the preceding two kinds, sometimes the copyright holder’s permission to make an exception to a license’s provisions can reasonably be presumed. For example, if a user who is enthusiastic about a program temporarily installs it on friends’ computers to demonstrate that it would be worth buying and removes it completely at the end of each demonstration session, he or she reasonably presumes the software maker’s permission. Similarly, it seems to me, when the computer on which a program is permanently installed is temporarily not in use—for example, when it is out of order—permission may be presumed to install the program temporarily on another computer, making it available solely for the licensee’s use. Again, if a licensee’s printer is out of order, it seems to me that permission may be presumed to install the program temporarily on another computer so as to print out a file.

One might argue that, even where a license expressly limits installation to one machine, individuals who buy the package for their personal use may presume permission to install it on two or more computers that they alone use—for example, a desktop used at home and a laptop used on the road. One could comply with the letter of the license, the argument goes, by regularly removing the program from each computer and installing it on the other; but that would waste time and benefit nobody. I think this argument is plausible.

Similarly, in regard to the first example proposed in the question, one might argue that a family of modest means with several children and two computers reasonably presumes permission to install on both a program that a family member purchases if the only alternative is, not to purchase another copy of the program, but to limit its use to meeting the more urgent need when two or more family members want to use it at the same time. I am not certain that this argument is sound, but it is plausible that any reasonable software publisher would take a tolerant view of such a violation. And what a reasonable publisher would tolerate is the appropriate moral—and legal—standard to follow.³⁴⁰ However, I think it is unsound to argue, as in the question, that families may presume permission to install programs on two or more computers merely because software makers never try to enforce their licenses’ terms against families who do this. Trying to enforce the terms in such cases usually would be impractical, because evidence would be virtually impossible to obtain and legal action usually would be costly in comparison with the damages that might be won. Yet those who make no effort to enforce rights whose enforcement is impractical need not concede them, and seldom do. For example, people who make unsecured loans to friends and relatives in amounts ranging up to several hundred dollars seldom try to compel repayment, yet they often consider themselves gravely cheated if not repaid as they were promised. So, that software makers do not enforce their rights against minor violations is not a sign their permission can be presumed.

What about the other question, concerning the volunteer who uses a desktop publishing program given her by someone who had purchased an updated version? The wording of licenses varies with respect to earlier versions that have been replaced with upgrades. Many exclude the transfer of earlier versions of the program; some say earlier versions may be transferred to specified sorts of recipients; still others say nothing explicit on the matter. In the last case, if the update package includes a license bearing a number different from the original, one may give the earlier version to someone else, provided one does not violate the license’s terms in making the gift; but if the update package is made available under the original license, one almost certainly violates its terms by giving the earlier package to someone else while using the later version oneself. Therefore, more information would be needed to know whether the license’s terms excluded the gift. If they did, the volunteer’s use of the program is theft, unless one of the conditions justifying an exception to an owner’s property rights is present or the copyright holder’s permission can be presumed reasonably.

In any case, the three considerations offered to justify the volunteer’s use of the software are fallacious.

First, it is not sound to argue that copyright infringement is not theft because the owner does not lose anything. Ordinarily, owners of copyrights lose something every time their rights are infringed: the income they would receive if others respected their rights in regard to each copy. Even if the practical alternative to copyright infringement is not using copyrighted material (and perhaps using something else instead), the unauthorized copy still is used without compensating its actual owner.

Second, generally, one may accept a gift one is offered without questioning the giver’s ownership. However, if there is some reason to suspect that accepting a proffered gift will be cooperating in theft, one should not accept it without putting the doubt to rest, since one cannot receive as a gift something that, belonging to another, is not the offerer’s to give. Considering how often the limits specified in computer software licenses are violated, anyone offered a copy of a commercially marketed program—even an earlier version of one that has been upgraded—does have reason for suspecting it cannot be rightly given, and should not accept it without making sure that doing so is compatible with the license.

Third, the generalization, “Software makers get rich enough from their sales to users who can charge off purchases as an expense,” is not sound. Unless one knows a particular copyright holder is prospering, one unfairly risks taking from another who can ill afford the loss. Moreover, many people who cannot obtain reimbursement for the cost of a program are fully able to pay for it and should do so.

Finally, Christians using computer software should not overlook their first and overarching responsibility toward others: to love them, even if they are enemies, as Jesus has loved all fallen humankind. When dealing with a corporation, one easily forgets that the transaction will affect the individual persons who are involved in the business. Those persons include not only the business’s owners—among whom may be nonprofit corporations and people living meagerly on their investment income—but its suppliers, employees, other customers, and so on. Each of these anonymous persons is called to share in the same heavenly family life for which a Christian hopes, and so should be regarded as a brother or sister. Therefore, just as with all other requirements of justice, one’s moral responsibilities with respect to the rights of software vendors not only are a product of reasonable rules but an implication of Christian love.

339. 17 U.S.C. §506(a), possible penalties in 18 U.S.C. §2319(b). The gain need not be realized, but violations of copyright without commercial advantage or financial gain in view are not crimes. Still, copyright holders can sue and may be awarded substantial punitive damages.

340. Most instances in which the copyright holder’s permission is justly presumed are instances of what is, legally speaking, “fair use”; see L. Ray Patterson and Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (Athens, Ga.: University of Georgia Press, 1991), 218–22.