Classic Computer Magazine Archive COMPUTE! ISSUE 17 / OCTOBER 1981 / PAGE 36

Guest Commentary:
A Software Publisher's Position On Software Pricing And Service Policies

Mr. Sherwin A. Steffin
Canoga Park, CA

I. Problem

A position paper appearing in COMPUTE!s June issue advanced the views of Computer Using Educators (CUE) regarding commercial software protection and licensing policies. CUE would propose a licensing arrangement that would allow software "to be copied and used by any and all teachers in that one school regardless of the number of computer stations or type of installation."

A misperception is at work here. This organization appears to hold the fundamental view that copying computer software is a right. CUE recommends that schools should not purchase software material unless it is copyable.

II. Position

In 1980, congress amended title 17, the United States Copyright Law to include the "computer program". The amended code reads:

It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful (17 USC 106).

The provisions of this law, capsulized in the phrases "essential step" and "archival purposes," are clear. Software copyright infringement is illegal. Complaints and rationalizations abound: that "restrictive" policies are unjust; that such policies do not "invite" teachers to respect and honor them; or that those who "beat the system" by pirating software from big corporations are to be applauded. Yet no measure of complaint will make the crime any less a crime. When a teacher permits (even encourages) children and young adults to disregard federal law and engage in illegal activities, what is that teacher undermining?

Costly and intensive research and development are required to produce any good software system, from drill and practice to the most sophisticated computer-mediated instruction. Even the simplest program file contains a complex set of instructions. Research and development costs far exceed the trivial cost of the material, or the ultimate retail cost of the product.

No software publisher would deny the necessity that teachers have on-site backup copies of software to avoid media failures which interrupt classroom activity. Yet CAI is a tool, like any other instructional aid. The purchasing policies which govern other educational materials (books, audio-visual materials, and the like) should not be expected to undergo modification simply because a medium's format is new or unfamiliar.

No software publisher fails to understand that the computer software industry has yet to adopt consistent, balanced purchasing policies for the schools. Yet, the instigation of licensing agreements poses problems analogous to those encountered in nuclear arms limitation efforts. The geographic area involved is expansive; the diversity of management policies (even among neighboring school districts) is immense. Further, the ambiguity of relying upon individuals' ethical behavior makes an "honors system" untenable. In short, the implementation of the copying procedures which CUE proposes, even at the local district level, would be unfeasible.

III. Proposed Solution

Answers do not come easily. The problems encountered today cannot be solved by a simplistic licensing policy, and the future will present even more confounding issues. Yet the difficulties are not insurmountable. As the microcomputer industry expands and time sharing becomes common-place, users and software publishers will have to look seriously (and cooperatively) at complex joint understandings.

Software purchase and use entails shared responsibilities: on the part of the software publisher, to provide the most trouble-free product possible; on the part of the user, to know how to use and operate that product carefully and effectively. With this in mind, we propose six components fundamental to any working policy:

  1. Software publishers should be accountable for providing error-free instructional materials.
  2. Software publishers should be responsible for rapid service (a two week turn around at most) when replacing defective materials.
  3. Where schools have purchased multiple CPUs, software publishers may provide software at sliding scale rates. An affidavit from a responsible district administrator would certify the number of CPUs purchased, protecting all parties. This sliding scale would permit educators to utilize multiple computers in one room, in multiple rooms, among several teachers, and even among several schools within a single district.
  4. When intensive disk activity is connected with the use of a given system, software publishers chould allow the user to copy and archive the disk.
  5. Software publishers need to make available options to the schools, offering not only the sliding rate scale, but "spare parts" (diskettes, documentation, workbooks, etc.) at a significantly reduced price. This after-sale activity could well cover little more than the costs of materials, processing, and handling. Software purchase can be made economically feasible for the school without resort to charity or criminality.
  6. Software publishers need to provide free disclosure about their locked instructional systems and the policies which support them. From this, educators may choose systems appropriate to their needs.

The problems connected with software piracy, if unchecked, will create an unnecessary and unfruitful adversary relationship between software publishers and educators. This paper delineates solutions to this dilemma: better quality control of software, licensing agreements, rapid service, and available spare parts.