Software and the law
Software and the law

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Software and the law

1 Why law is necessary

Computers have become embedded in society, making certain transactions between people or organisations affecting other people – what economists call ‘externalities’. Sometimes these externalities are generally positive and good, but lead to the ‘free-rider’ problem. In other cases the effects can be negative and bad – and even the seemingly beneficial free ride can also have negative effects, as when software can be easily copied (a free ride), with the consequence that invention and production ceases.

Negative effects raise questions of ethics and morality, which can be addressed by embedding ethical principles in professional codes of conduct. By formulating regulations in the form of technical standards, it is possible to help technology and people to work together more effectively.

While these voluntary approaches to counteracting negative effects work in many situations, sometimes we need the full might of the state in order to ensure that harm is not done and that society and the economy operate in the way intended. The mechanisms used by the state are the law, and law enforcement. Look at Case study 1.

Case study 1: Fonts and software in South Asia

Personal computers have been in use in South Asian countries (such as India and Pakistan) since the 1980s. While the hardware needed clearly has to be bought, the ease of copying software has meant that it’s seldom the case that software has also been bought. In the case of basic software such as operating systems this has meant a loss of revenue for major suppliers such as Microsoft, but has also meant there’s been little incentive to produce software locally. Because most computer use takes place using English, and pirated software has met local needs, the exception has been software for working in local languages – which use a variety of non-Roman scripts.

Since the 1980s and the arrival of desktop computers, various individuals have created fonts to facilitate desktop publishing in local languages. Producing such fonts may take months or even years of effort – but as soon as a font is produced it gets freely copied and distributed, and companies that assemble computers locally will typically include such fonts so as to enhance their product’s appeal. For example, in Nepal a typing tutor based on the traditional tale The Ramayana was commissioned by a pioneering local IT company, written by a local expert, then shamelessly copied by local distributors.

Thus fonts for local languages and software that works in those languages using those fonts have produced little income for their originators – suggesting that such work is undertaken more out of attachment to local languages than for reasons of financial return.

Only in the first decade of the 21st century was serious software for South Asian languages produced, following the adoption of open-source methods. One reason for the move to open-source has been to gain the freedom to localise in whatever language is desired, unfettered by market considerations. But the shift also tacitly recognises the realities of the market: that without intellectual-property law and its enforcement, fonts and software will effectively be public goods.

We’ll look at several areas where most legislation has been created, starting with an extended account of intellectual-property law. Our treatments will necessarily be brief and focus on principles, independently of any particular legal jurisdiction and its laws, statutes and legal precedents. Many books have been written on how the law affects software and what special measures have been introduced for new problems created by software – the main sources used for this course were Edwards et al. (2000), and Holt and Newton (2004). The new problems may sometimes be made more complex when older laws, drafted before software and the internet existed, get reinterpreted for this new context.

The internet in particular has caused the law to become more international – for when crimes are committed on the internet, it is frequently not clear where, geographically, the crime has occurred.

Normally the place where a crime is committed determines the jurisdiction – the place where a particular set of laws should be applied. But, for example, when someone in North America posts information on an internet site in Asia that may be illegal somewhere in Europe, where did the alleged crime take place? There needs to be international law to cover such cases. In any particular case the advice of an appropriate specialist lawyer should always be sought.

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