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Software Piracy: Is it Happening in Your School or University?

Editor"s Note: Thefollowing information has been provided by the Software PublishersAssociation in Washington, D.C. The goal of this report is to informeducators about software piracy and help them comply with copyrightlaws.

FrequentlyAsked Questions

Q. Is it okay for schoolsto copy software?
A. No, without the publisher"s permission, it"s not okay forschools to copy software. Software is protected by copyright law.Those who purchase a license for a copy of software do not have theright to make additional copies without the permission of thecopyright owner, except: (i) copy the software onto a single computerand (ii) make another copy for archival purposes only.

Q. What exactly d'es thelaw say about copying software?
A. The law says that it is illegal to make or distribute copies ofcopyrighted material, including software, without authorization. Ifyou do so, this is piracy, and you may face not only a civil suit,but also criminal fines of up to $250,000 and jail terms of up tofive years.

Q. Could I be accidentallypirating software?
A. Yes, piracy in schools is happening both intentionally andaccidentally. Most educators try to comply with the law. However,educators have told SPA that they intentionally pirate softwarebecause of budget limitations or other reasons. Examples ofaccidental piracy include when schools: buy one copy of a softwarepackage and load it onto multiple computers or a network without asufficient number of licenses; allow educators or students to takethe software home and place it on their personal computer; buy onepackage and load the 3 - 1/2" disks and/or the CD onto different PCs;or copy programs from the Internet that are not shareware, publicdomain or freeware.

Q. But aren"t schoolsallowed to make copies for educational purposes?
A. No. Like individuals and corporations, educational institutionsare bound by the copyright law. Just as it would be wrong to buy onetextbook and photocopy it for use by many students, it is wrong for aschool to duplicate software without the authorization of thepublisher. This means that educators cannot make unauthorized copiesof software for themselves or their students to use in school or totake home. Software publishers do in many instances make softwareavailable to schools at a significant discount. Call the publisherwhose title(s) you are interested in for more details.

Q. We"re planning toinstall a network for our students. How do we know how many copies ofsoftware we"ll need to purchase?
A. Remember that the installation of a network d'es not change yourobligations with regard to the copyright law. When purchasingsoftware for a network, be sure to ask the publisher what types oflicensing arrangements are available. Many software publishers offerspecial network versions, which license the program to be run on thefile server of a network. This allows those connected to the networkto access the software from the network. Because some publisherslimit the number of workstations that are permitted to legally accessthe software on the network, it is very important to check thelicense agreement for any restrictions that may apply.

"Fair Use"of Software in Education

The Copyright Act (17U.S.C. Section 106) gives the owner of a copyrighted work theexclusive right to reproduce the work, to prepare derivative works,to distribute copies of the work, and to perform or display the workpublicly. In most cases, no one can make copies of a copyrighted workwithout the copyright owner"s permission, and anyone who d'es so isan infringer of the copyright and may be held liable to the fullextent of the law.

The Copyright Act setsforth four factors that courts are to consider in determining whethercopying of someone else"s work is permitted by the doctrine of fairuse: (1) the purpose and character of the copying, including whetherthe use is of a commercial nature or is for nonprofit educationalpurposes; (2) the nature of the work being copied; (3) the amount andsubstantiality of the portion that is copied in relation to thecopyrighted work as a whole; and (4) the effect of the copying uponthe potential market for or value of the copyrighted work.

As you can see, determiningwhether fair use exists depends on particular circumstances. Toassist educators in evaluating whether their intended copying ofcopyrighted works will violate the law, the legislative history ofthe Copyright Act includes an Agreement on Guidelines for ClassroomCopying in Not-For-Profit Educational Institutions that helps definewhat constitutes "fair use" for classroom copying. However, theseGuidelines only cover the reproduction of books, periodicals andmusical compositions, not software.

Besides fair use, schoolsalso benefit from some highly specific exemptions from copyrightliability. For example, Section 110 of the Copyright Act providesseveral specific limitations on the exclusive rights copyright ownersenjoy in their works. These limitations permit schools andeducational institutions to display and perform copyrighted worksunder very specific circumstances. In face-to-face teachingactivities, Section 110(1) permits instructors or pupils at nonprofiteducational institutions to perform or display copyrighted works solong as the work is performed or displayed in a classroom or similarplace devoted to instruction. Even if these requirements are met,Section 110(1) still prohibits educational institutions fromperforming motion pictures and other audiovisual works inface-to-face teaching if the person responsible for performing thework knows or has reason to believe the copy was not lawfully made.The educational exemption for using copyrighted works transmitted byany device or process is much more limited. Section 110(2) permitsnonprofit educational institutions and governmental bodies to performnon-dramatic literary works or musical works, or to display anycopyrighted work, by or in the course of a transmission, but only ifthe performance or display is: (1) a regular part of the systematicinstructional activities; (2) directly related and of materialassistance to the teaching content of the transmission; and (3) thetransmission is made primarily for a copyrighted work to be performedor displayed. It is difficult to know when something is "fair use."The best strategy is to contact the publisher to find out if alicense is available for your specific needs.

The Copyright Act providesother exemptions that may apply to specific educational activities.The U.S. Copyright Office publishes an excellent summary of Section107 of the Guidelines. The publication, entitled Circular 21 -Reproduction of Copyrighted Works by Educators and Librarians,can be requested by calling the office"s Forms Hotline at (202)707-9100.

CopyrightResources

The Software PublishersAssociation offers numerous resources and materials to assist youwith learning about and developing copyright policies.

  • The SPA Hotline for reporting copyright violations is 800-388-7478. The SPA responds to each call. After confirming that a violation has occurred, one of three actions is taken: a cease and desist letter is sent; an audit is conducted; or a lawsuit is filed. To date, more than 1,300 actions have taken place against organizations and training institutions.
  • Education Software Management: The K-12 Guide to Legal Software Use is a how-to book to help educators stay in compliance with the copyright laws. Its price is $20 per copy.
  • Software Use and the Law: A Guide for Individual, Business, Educational Institutions and User Groups is a brochure that details how the copyright law applies to software. It is available free upon request from the SPA.
  • Is It Okay for Schools to Copy Software? is a one-page flyer that answers commonly asked questions about educational software. Districts are encouraged to photocopy the flyer and distribute it to all employees, perhaps in conjunction with a staff-development or in-service program on copyright issues. It is available free upon request from SPA.
  • Don"t Copy That Floppy is a nine-minute video that uses peer pressure as students convey the message that it"s not only illegal to pirate software, but it"s also "not cool." It sells for $15 per copy.
  • Certified Software Manager Course is a six-hour course offered by the SPA around the country that trains individuals to be software managers in their district, school, regional media center or administrative office.

SampleCode of Ethics

All employees and studentsshall use software only in accordance with its license agreement.Unless otherwise noted in the license, any duplication of copyrightedsoftware -- except for backup and archival purposes -- is a violationof federal law and [District/University] policy. This signedCode of Ethics will be filed with the [District SoftwareManager/Academic Dean].

  • I will use software according to the provisions of the license agreements.
  • I will not make unauthorized copies of software under any circumstances.
  • I recognize that the [District/University] will not tolerate the use of any illegal software copies on its computers.
  • I understand that anyone found copying software other than for backup or archival purposes is subject to [District/University] disciplinary actions.
  • I understand that anyone found making illegal software copies may be subject to civil and criminal penalties up to $250,000 per work copied and/or expulsion from the [District/University].
  • I will report any suspected misuse of software to the [District Software Manager/Academic Dean].

Name:________________________ (Please print)

Signature:_____________________

Date: _________

 

To report piracyviolations, contact the SPA anti-piracy hotline or send email topiracy< @spa.org. To order SPA publications, visithttp://www.spa.orgor call (202) 452-1600. This report can be reproduced with permissionfrom the Software Publishers Association, 1730 M Street N.W., Suite700, Washington, D.C. 20036.

This article originally appeared in the 04/01/1998 issue of THE Journal.

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