Why History Needs Software Piracy

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.

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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 (the life of the author plus 70 years 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.

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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.

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.

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.

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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