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By Martin Brampton, 18 January 2005 07:00

COMMENT Microsoft's actions around software licensing rarely fail to create a stir in the industry or among users. But are there any simple answers to the problems it faces? Martin Brampton doesn't think so…

Microsoft is aiming for the moral high ground. It commissioned a survey from YouGov to find out about people's attitudes to the ethics of buying decisions. Oh, and it also asked about use of pirated software.

A substantial majority of consumers certainly believe that ethics come into their choices. A large number are prepared to pay a bit extra for Fair Trade products that offer better returns to growers. Those surveyed also gave majority support for communal action such as an improved health service.

But Microsoft was disappointed to find half the sample owned goods they knew to be counterfeit. Even closer to Microsoft's heart, nearly a quarter of those surveyed admitted to owning pirated software. Whether they were asked to give their names and addresses is not disclosed.

Donning its Robin Hood outfit, Microsoft commented that a mere ten per cent reduction in UK piracy would raise £2.5 billion of additional tax revenue. This figure does seem rather suspect, since it would imply that pirated Microsoft software has a value equivalent to around a quarter of the entire private sector of the economy.

The research also showed that 75 per cent thought that ideas belonged to the people who created them. Most would be highly aggrieved if their own ideas were stolen. Microsoft sees this as evidence of hypocrisy among the survey sample.

Yet ethics is dangerous territory, especially for the unwary. It might be that the people consulted in the survey actually have a conception of justice that makes their answers perfectly consistent. The support for Fair Trade suggests that many people believe that justice is a consideration that can override the simple desire to buy goods at the lowest possible price.

Companies, in the contemporary world, often seem to take quite the opposite view. For example, the banks are now under fire for their practice of hard selling repayment protection insurance. They have been inclined to sell this even when the exclusions in the cover mean that the insurance is worthless to the customer. Justice seems to lag behind profit.

And in its relations with rival software companies, Microsoft has often been on the receiving end of claims of misuse of intellectual property. Mostly, these disputes are eventually settled out of court, leaving Microsoft able to claim that it has not been found to have done anything wrong. The Stac Electronics case was unusual, with the court finding Microsoft guilty of patent infringement, although Microsoft denied this.

Top Microsoft executives have talked about "playing hardball" in relation to competitors. What exactly are we to make of that? It seems to refer to tactics that do damage to rivals in ways that many people would see as unfair. Given the number of law suits, one might think that it also involves actions that breach the rights of others in civil law.

Law is complex, though. Software companies that talk about piracy usually mean anything that is in breach of the licence. One problem with this is that typical software licences contain many detailed clauses and the customer has no option to negotiate. Moreover, they may conflict with unfair contract legislation. Until a contract is tested in court it is impossible to say for sure, and most have never been tested.

Without it being any justification for breaches of law, most people also believe that Microsoft would prefer people to use illegal copies of its software than use something else. It is the apparent ubiquity of Microsoft's software that is a powerful force in sustaining the company's market position. Indeed, it is unclear whether Microsoft is actually making significant efforts to halt so-called piracy in emerging markets.

So perhaps all the survey shows is that most people have a sense of justice. Maybe a significant proportion of them believe that using pirated software is just “playing hardball” with Microsoft. Is there really a double standard somewhere in this?