While the above scenario sounds ridiculous, try telling that to the record and movie industries when talking about file-sharing networks. You can find thousands of copyrighted music, movie and book files, as well as computer programs, through any file-sharing program like Kazaa or BitTorrent, but does that make the file-sharing programs and the underlying technology behind them illegal? If you answered yes, based on the fact that file-sharing networks can transmit copyrighted materials to others, then get ready to sue the postal service, the telephone companies and every Internet Service Provider in the world, because their technology can be used to transmit copyrighted materials too.
Technology is never the culprit; it's the people who use that technology who are to blame. File-sharing networks aren't just providing newer and faster ways to violate copyrights. File-sharing networks are also exposing the fundamental ideas behind our copyright laws in the first place.
Copyright (and patent laws as well) share similar goals: provide legal protection to reward the creator. If you create something and others find it useful, you deserve payment for your creation. No arguments there.
When you buy a book, CD or DVD, the copyright holder grants you permission to own possession of the copyrighted work, but not possession of the copyright itself. That means no one can copy and distribute copyrighted work without the copyright owner's permission, nor can they create derivatives from that work either.
So far, so good. Now suppose you create a new virus. Technically, you're the copyright owner of that particular virus and no one has the right to distribute your work without your permission.
So what happens when anti-virus companies share viruses for analysis? Unless they have permission from the virus creator, they're technically infringing on the virus writer's copyright. When they dissect part of the virus code to store its "signature" in an anti-virus program's scanning database, does that constitute a "derivative" work, thus protected by copyright law?
Here's another legal dilemma. Nobody owns software anymore, they license it. So when you install a program, you must agree to a densely worded license agreement, which nobody pays attention to anyway. So, when the recording industry installs a copy of Kazaa to search for people sharing copyright materials, they must agree to Kazaa's license, which includes the following restrictions of what users may NOT do with Kazaa:
2.2 Harm minors in any way;
2.11 Monitor traffic or make search requests in order to accumulate information about individual users;
2.12 "Stalk" or otherwise harass another;
2.14 Collect or store personal data or other information about other users; or
2.15 Intentionally make available spoofed files or files with information designed to misidentify the actual content of the file.
In order to collect information to sue people engaging in copyright infringement, the recording industry itself must violate the above license conditions to their Kazaa program. So technically, the recording industry is breaking one law just to enforce another.
The point is that some laws always take precedence over others, despite any inherent contradictions. It's illegal to kill someone, but it's legal to enforce the death penalty. It's illegal for underage teenagers to drink alcohol, but it happens every weekend on every college campus in America. It's illegal for former drug users to work for the Secret Service, yet it's legal for former drug users to be protected by the Secret Service if they happen to be the President of the United States.
Of course, no one is suggesting that anti-virus companies should pay royalties to virus writers or that people have the right to share copyrighted works over file-sharing networks with impunity because of software licensing restrictions (but perhaps former drug users should be allowed to work for the Secret Service or should be barred from ever becoming President of the United States!).
What the dilemma of file sharing should suggest is that people need to avoid getting bogged down in the legal technicalities (which allow both sides of the file sharing dilemma to sue each other) and instead focus on the real problem. Specifically, it's illegal to copy any copyrighted material without the owner's permission.
By focusing on the root problem of copyright infringement, the argument is no longer about how the violation occurs, whether via DVD burners, multiple tape decks, photocopying machines or file-sharing networks. Instead, the criminal activity is the real target; the technology is neutral.
The only way to solve the problem of file sharing is to rise above it. File sharing, like shoplifting, will always occur. Therefore, the recording and movie industries must assume that they'll never be able to stop it and must attempt to minimize its damage and exploit the new moneymaking opportunities that file sharing can bring them through legal channels.
Either that or they can just sue everyone in sight.
Wallace Wang is the author of Steal This File Sharing Book and Steal This Computer Book.