Microsoft and friends

Few things can ignite Russian society as much as a noisy case of criminal prosecution for computer piracy. When the case involves Microsoft - the biggest, most powerful player on the market, whose founder Bill Gates has become a character of local anecdotes, a clear sign of fame, yet not adulation - and, on the other side, an army of human rights activists, the result is a barrage of news stories that produce more heat than light but create a widespread sense that the software leviathan has, once again, done something reprehensible albeit legal.

In 2006, Alexander Ponosov, who was then the principal of a high school in a remote village in Siberia, was prosecuted for using illegal copies of Microsoft Windows and Microsoft Office on school computers. The headmaster faced five years in prison. Several public figures, however, spoke in his defence. ‘To take a man,’ said Vladimir Putin, ‘who simply bought some computers and then threaten him with prison is utter nonsense.’ Mikhail Gorbachev wrote to Bill Gates asking him to intervene. Although Microsoft’s CEO refused to step in – this was a public prosecution, he said, not a private dispute - the case was closed and Mr Ponosov bagged 250,000 roubles (~$8,000) of compensation.

Three years later, Anastasia Denisova, the head of a non-government organisation ‘Ethnics’, was charged with copyright infringement. Pirated software had been installed on three computers which, according to the investigators belonged to Ethnics (Denisova denied this). There were reports of activist groups being searched and their computers seized under the pretence of fighting copyright fraud, despite the evidence that the software was legal. What is more, the activists claimed that Microsoft was slow, if not reluctant, to help them to prove that their software was legal.

Human rights heavyweights like the Moscow Helsinki group and Memorial sent a letter to Microsoft demanding to know whether the company is ‘supportive of all actions of its representatives’ and whether it endorses the criminal prosecution of activists if they use non-licensed software. In short, they accused Microsoft of being used to suppress the dissent movement in Russia.

There is a comic element in this statement. Why would activists be immune to copyright laws? And why should a private company endorse or otherwise prosecutions which, by definition, emerge from criminal law and are supported by the state? There is an element of truth also: in the real world, prosecution is unlikely to succeed unless assisted by the right holder.

Copyright is essentially a private matter. The bulk of the cases is, or is supposed to be, civil rather than criminal. In a civil case, mere possession of an illegal copy is usually enough for monetary compensation. Sending a man to prison is another thing. Criminal proceeding requires a high standard of proof of the set of facts that constitute the offence (the proof of state of mind is particularly onerous). Arguably, neither the Ponosov nor the Denisova cases were well founded in criminal law; they shouldn’t have even been started.

What we have, in effect, is a system of prosecution provided by government and backed by a technology giant that is used to intimidate, menace and extort the payoff. That is the real scandal.

Two out of every three computer programs in Russia are stolen. (Just five years ago, according to the Business Software Alliance, the number was almost nine out of ten – a remarkable improvement by any standard.) Statistically, nearly every Russian computer has illegal content. This opens unlimited opportunities, but it is also a road to hell.

Microsoft does not usually act directly. It operates through a myriad of independent lawyers and distributors – all of whom represent Microsoft - as well as an army of state prosecutors and police officers. Motivated by greed, the desire to further one’s career or just outright stupidity they will continue doing odd things like sending a school headmaster to prison because he’d been supplied with computers with dodgy programs, a human rights activist, an entrepreneur or simply a housewife who bought Microsoft Office at a stall around the corner.

This is where the hardest problem lies for Microsoft. Strange things will continue to happen unless it learns to control all those people who work for the company and to use wisely the cruel system it allies with. Because all those strange things will be done in the name of Microsoft.

September 27, 2010
text: S. Matyunin
picture: NatalyArt - Fotolia.com

This article first appeared in The Moscow Times