Does fair use apply?

If I loan a book to a friend to read, am I committing an act of piracy? The day is fast approaching when at least some people will answer that question in the affirmative.

Amid the sound and fury generated by our recent discussions of TurboTax product activation, an important point had to take a backseat to the more immediate concerns readers were expressing about Intuit’s move to restrict use of pass-along CDs. Now that the smoke has cleared at least a little, I’d like to get back to it.

Several readers were somewhat taken aback by my earlier comments comparing a copy of TurboTax to a book or video. “I don’t like the analogy,” wrote one reader. “It’s too easy to make an illegal copy of software, for one thing. Even if you pass along the CD without retaining the program on your hard drive, you’re depriving Intuit of a possible sale to the person you pass it on to. That’s piracy as far as I’m concerned.”

Of course, passing along the CD while keeping a copy of the program for yourself would be piracy. If that had been Intuit’s primary concern, however, it would not have needed to upset users with a complex product-activation scheme. The type of copy protection used by many game software publishers, requiring the CD to be present for the program to run, would have sufficed.

But does passing on the CD without keeping an illegal copy still constitute piracy? After all, tax software vendors would seem to be particularly vulnerable to such pass-alongs because, after filing their own taxes, the original customers would not likely have further need for the program until the next tax season.

But that’s exactly why I think the analogy between TurboTax and a book is actually quite appropriate, even more so than for other types of software. A book is also a product you use once and then might never use again. But if you pass a book along to a friend or even sell it to a used bookstore, aren't you potentially depriving the book publisher of possible sales as much as a TurboTax customer passing along the CD?

So why don’t we feel like pirates when we loan someone a book? Or, for that matter, when we give away a video, music CD, or DVD? Books may not be as subject to casual copying as software programs, but the music and motion picture industries are crying piracy even louder than the software industry. And even the worst of the anti-fair-use laws their lobbyists are pushing Congress to pass wouldn’t block resale of a legal copy.

In fact, just one relevant difference exists between that TurboTax CD and a book when it comes to defining what is and isn’t piracy. The software comes with a sneakwrap license agreement that restricts use of the product to the computer on which it was originally installed. It makes you wonder if book publishers are just too stupid to live. Why don’t they put their own license agreement on the inside cover to prohibit transfer of the product?