Legal Writing [LWLW100]

A Socio-Economic Impact of Copyright Protection in Software: A

Comparative Analysis between Windows and MacOS

Submitted by:

Sankhadeep Barman (A90821519070)

BBA. LL.B. (H)

Semester – 9

Section – B

2019-24

Cover Page
 Table of Contents

Cover Page................................................................................................................................1

Table of Contents.....................................................................................................................2

Introduction..............................................................................................................................3

Understanding the Concept of Copyright..............................................................................3

Subsistence of Copyright.........................................................................................................4

Fair Use Doctrine.....................................................................................................................5

Piracy in Softwares..................................................................................................................6

Why is Windows Pirated so much?........................................................................................7

How is MacOS Protected?.......................................................................................................8

How do the two companies differ in their approach to the issues of Piracy?.....................9

How are the two companies shaping the Computer Market?............................................10

Analysing the Socio-Economic Impact such actions are making.......................................11

Conclusion...............................................................................................................................12

Bibliography...........................................................................................................................13
Table of Contents
Introduction
The advent of Computer Technologies were witnessed during the late 20 th Century and it
peaked during the late 1990s. Simultaneously, creation of softwares and operating systems
were taking place. Consequently, distribution of such softwares also required the authors and
creators of such softwares to be remunerated for their time, labour and use of skills.
Therefore, many such softwares were sold in the markets at a price which meant
unavailability of such softwares to a substantial part of the market. This led to the
development of Free and Open Source Softwares (FOSS) as well as a drastic increase in the
rate of software piracy. Brands such as Microsoft and Adobe expanded their market shares by
allowing, to a certain extent the piracy of their softwares for personal users. This, when
contrasted against the stand of Apple Inc. in favour of protecting its MacOS, iOS as well as
iPadOS, brings to the forefront a very important question as to whether piracy is actually
doing more good than harm. This Project delves into minute aspects of both Windows and
MacOS piracies and tries to gauge the degree of piracy that is being allowed whether
intentional or nor. Further, this Project tries to understand the socio-economic impact that the
copyright protection in softwares have.

Understanding the Concept of Copyright

Copyright has been defined under the Copyrights Act, 1957 under Section 14 as “the
exclusive right subject to the provisions of this Act, to do or authorise the reproduction of the
work, issuance of copies of the work, adaptations as well as translations of the work in
respect of a work or any substantial part thereof”1.

A copyright can therefore, be understood as an exclusive right of the author or creator over
his creations that allows him to authorize license, reproduce as well as issue copies and
authorize adaptations as well as translations of the work created by him. Therefore, copyright
can be understood as a statutory right that entitles an author or a creator to his moral,
economic as well as statutory rights that are bestowed upon him by virtue of his being such
author.

1
Copyrights Act 1957, s. 14.
Subsistence of Copyright
Copyright is said to subsist in expression of ideas and not ideas themselves. This has been
consistently observed by various Courts in various jurisdictions across the world. In the case
of Donoghue vs. Allied Newspapers Ltd.2, it was observed by the Court as follows:

“…..If the idea, however brilliant and however clever it may be, is nothing
more than an idea, and is not put into any form of words, or any form of
expression such as a picture or a play, then there is no such thing as
copyright at all. It is not, until it is reduced into writing, or into some
tangible form, that you get any right to copyright at all, and the copyright
exists in the particular form of language in which, or, in the case of a
picture, in the particular form of the picture by which, the information or
the idea is conveyed to those who are intended to read it or to look at it.”

In the case of Barbara Taylor Bradford vs. Sahara Media Entertainment Ltd. 3, the Calcutta
High Court observed as follows:

“If plots and ordinary prototype characters were to be protected by the

copyright law, then soon would come a time in the literary world, when no
author would be able to write anything at all without infringing
copyright…. an intending author, instead of concentrating upon the literary
merit of his expression, would be spending his life first determining whether
he is infringing the copyright if the ither authors who have written on this
topic or that. The law of copyright was intended at granting protection and
not intended for stopping all literary works altogether by its application.”

Similarly, in the United States the Courts have made similar observation to the same extent.
In the case of Open Source Yoga Unity vs. Bikram Choudhury 4, the District Court of North
California observed as follows:

“Copyright Law provides that while functional and public domain material
remains free for all to use, a compilation of that material may nonetheless
qualify for copyright protection if the compiler can demonstrate a sufficient
level of creativity in the selection and arrangement of the elements in the

2
Donoghue vs. Allied Newspapers Ltd., (1937) 3 All ER 503 (Ch.D).
3
Barbara Taylor Bradford vs. Sahara Media Entertainment Ltd., 2004 (28) PTC 474 (Cal) (DB).
4
Open Source Yoga Unity vs. Bikram Choudhury, 74 USPQ 2d (BNA) 1434.
 compilation. …..OSYU has provided no persuasive authority that a
compilation of yoga asanas cannot be protected under the copyright laws in
the same manner as other compilations.”

It can be inferred from the above extracts of the respective judgements that the position that
copyright subsists in the expression of ideas and not in ideas itself is maintained by Courts
everywhere throughout the world.

In case of softwares, therefore, the copyright subsists in the Source Codes as the they are
expressible forms. But the Copyright Act, 1957 goes on further to include ‘Computer
Programme’ within the ambit of protected materials by Copyright. Section 14 (b) gives
protection to the copyright in the Computer Programmes. An Operating System, being a
compilation of various scripts and consisting of several programmes to effectively enable a
computer to run a Graphical User Interface, is also a programme. Consequently, the piracy of
Operating Systems such as Windows or MacOS, within which a copyright lies that owned by
their respective Brands is a violation of their rights.

Fair Use Doctrine

Fair Use is a doctrine in United States law that permits limited use of copyrighted material
without having to first acquire permission from the copyright holder. Fair use is one of the
limitations to copyright intended to balance the interests of copyright holders with the public
interest in the wider distribution and use of creative works by allowing as a defence
to copyright infringement claims certain limited uses that might otherwise be considered
infringement. Unlike "fair dealing" rights that exist in most countries with a British legal
history, the fair use right is a general exception that applies to all different kinds of uses with
all types of works and turns on a flexible proportionality test that examines the purpose of the
use, the amount used, and the impact on the market of the original work.5

Under the Copyright Act, 1957, Section 14 gives exclusive rights to the creators and authors
only to authorise reproduction, adaptation as well as to issue copies of his work. This negates
the act of piracy and thereby, any reproduction, adaptation as well as issuance of copies of

5
‘Fair use’ (Wikipedia, 17 November 2022) <https://en.wikipedia.org/wiki/Fair_use> accessed on 18 November
2022.
any work of the author without his permission for commercialization of such pirated work, or
even worse, by causing harm to such creator economically would be against the spirits of the
Act. Therefore, lying beyond the scope of Fair Use, piracy infringes upon the statutory as
well as economic and moral rights of an author or a creator.

Piracy in Softwares
Fair Use of any copyrighted material is constituted by uses in Research, Academics, etc. Any
use of a copyrighted material in such a negligible quantity that would neither harm the creator
of the work nor cause any economic harm to him will be considered as Fair Use under the
Law. In case of Windows as well as MacOS, both are closed-source Operating Systems being
commercialized by their respective companies. However, Apple has consistently made
sincere efforts trying to protect its software from piracy and as a result, it is viewed as a very
safe as well as privacy-focussed Operating System throughout the world.

On the other hand, in the local markets, Windows is found almost in any local store that is
repairing computers or even selling repaired hardwares. Microsoft had allowed its Windows
10 to be downloaded at no cost from its original website. Thus, Windows acquired a huge
market base during the time of Windows 10 by making Windows available to the people who
could not otherwise afford to buy it. Even during the 1990s, Microsoft allowed a large
portion of the public to pirate its Windows Software to ensure that Windows is used in as
many systems as possible. This resulted in the large market share that Windows currently
holds in the Desktop Computer Operating System Market.

Why is Windows Pirated so much?6

6
‘Explained: Microsoft knows most PC owners use pirated Windows, but why it still won’t take any action’
(Firstpost, 01 June 2022) https://www.firstpost.com/tech/news-analysis/explained-microsoft-knows-most-pc-
A 2018 study reported that at least 91 per cent of PC users in India were using a pirated copy
of Windows. In fact, even when a new PC or a laptop with preinstalled Windows was bought,
80-85 per cent of the time, the users received a pirated copy of the operating system.
Microsoft, however, is completely aware of the situation. Furthermore, it does not take any
action if a Pirated Version of Windows is being used in a personal computer by a person.
This is because, it is relying on the fact that a copy of pirated Windows is used and as long as
it is a Windows Operating System it causes no harm to Microsoft because of the likeliness of
the increasing dependency over its product. This gives the company a lead in terms of the
market share. Additionally, it takes advantage of the fact that if majority of the public is using
its Operating System, the dependency over its product will remain for long without losing
much market share to its competitors. Furthermore, in schools, Microsoft Windows and other
products from Microsoft’s product ecosystem is used in education curriculums. This would
mean that children would develop their skill on using a computer around the ecosystem of
Microsoft.

Similarly, if it allows schools and educational institutes to use pirated Windows, they will
have a generation of computer users, whose preferred Operating System is likely to be
Windows. Thereafter, when such individuals join the workforce in their Career, they will
have to be provided with a machine with Windows on it, despite the fact that there are tons of
free, open-source operating systems out there.

How is MacOS Protected?7

owners-use-pirated-windows-but-why-it-still-wont-take-any-action-10746321.html/amp accessed on 23
November 2022.
7
https://www.gnu.org/proprietary/malware-apple.en.html.
To help protect its customers and combat some of these threats, Apple has added many
security and privacy-enhancing features to macOS over the past decade. With each major
revision, along with incremental security updates, Apple has continued to improve the Mac’s
baseline security. Apple has pushed out updates for most of its major products to protect
them from a strain of spyware that has already targeted a number of people.

Apple operates a threat intelligence process to quickly identify and block malware. It uses a
three-layer defense which is structured as follows:

1. Prevent launch or execution of malware: App Store, or Gatekeeper combined with

Notarization
2. Block malware from running on customer systems: Gatekeeper, Notarization and
XProtect
3. Remediate malware that has executed: XProtect

The first layer of defense is designed to inhibit the distribution of malware, and prevent it
from launching even once — this is the goal of the App Store, and Gatekeeper combined with
Notarization.

The next layer of defense is to help ensure that if malware appears on any Mac, it’s quickly
identified and blocked, both to halt spread and to remediate the Mac systems it’s already
gained a foothold on. XProtect adds to this defense, along with Gatekeeper and Notarization.

Finally, XProtect acts to remediate malware that has managed to successfully execute.

How do the two companies differ in their approach to the issues of Piracy?
Microsoft takes advantage and therefore, allows the continuation of piracy, indirectly abetting
the crime. However, there have been several instances when it took steps against the piracy of
its Windows Operating System. On the other hand, Apple Inc. views piracy as a detriment to
its business. Apple seeks to project its products as luxury items than products to be used for
daily chores requiring such gadgets. As such, Apple focusses on Privacy as well a lot.
Therefore, to protect its interests and keep a closed ecosystem that cannot be jailbroken
easily, it takes a very strict stand against piracy that is evident in the way it structures its
Operating System. For a pirated version of any software, there is no warranty given by the
seller and as such, random injection of malware from certain sources at various stages of
pirating the Operation System may be possible and as such, pirated softwares may have
malicious softwares hidden from the end user. Apple’s MacOS is protected against such
malwares as well by the three-layered structure built-into its system. Therefore, it is evident
that the two companies have taken contrasting steps in matters of piracy of their respective
softwares. While Microsoft allows piracy to use it to its own advantage in business, Apple, on
the other hand, protects its softwares from piracy to give the safety and privacy features of its
ecosystem.

How are the two companies shaping the Computer Market?8

More than any other American companies, Apple, Inc. and Microsoft Corporation dominate
the intersection of technology and consumer access. Even though they compete across a huge
range of sub-industries, such as computing software, hardware, operating systems, mobile
8
‘Apple vs. Microsoft Business Model: What's the Difference?’ (Investopedia, 26 January 2022)
https://www.investopedia.com/articles/markets/111015/apple-vs-microsoft-vs-google-how-their-business-
models-compare.asp accessed on 23 November 2022.
devices, advertising, applications, and web browsing, each firm takes a different approach
from an organizational and philosophical perspective. The following are a few key aspects on
how the two companies are shaping the market:

1. As of 2021, Apple and Microsoft are two of the biggest companies in the world,
alternating the title of the world's most valuable company.
2. Both companies have boasted a market cap of over $2 trillion.
3. Apple's business model is based on innovation and consumer-centric devices. They
are able to keep their base due to easy-to-use designs and data migration to new
product lines.
4. Microsoft built its success on the licensing of software such as Windows and Office
Suite. Their business model has shifted, and they are releasing their own devices to
compete with Apple's.
5. Both companies are run differently with different end purposes. They are both
extremely successful and have revolutionized their respective industries.

Analysing the Socio-Economic Impact such actions are making

It is undoubtedly clear that while both companies have taken different stands on piracy,
piracy by itself, is clearly against the rights of the rightful owners of the work created. Piracy,
in its basic sense is the stealing and modifying the software to use it as well as distribute it
commercially for gains without allowing the Security Systems of the softwares to recognize
such attempts. However, since the act of piracy is implicitly supported by Microsoft and due
to the unaffordability of majority people in developing nations such as India, Windows
remains to be popular choice of operating system. Had Apple allowed such piracy of its
MacOS, it would have similarly penetrated the market at similar rates.

As a result, people from developing nations are more used to Windows as well as use it for
downloading and using more pirated softwares and applications. However, even though
downloading and using pirated applications on MacOS is possible, it has a common
reputation that using a MacOS for piracy is a wrong choice since it automatically blocks the
process of piracy during the process itself.

Consequently, there arises the gap of haves and have-nots. Also, preference of the Operating
System becomes a major issue. Nonetheless, persons who may prefer and may also be able to
afford Apple products are likely to refrain from acts of piracy, though this may not hold true
for single individual. On the other hand, Windows, being used as a pirated Operating System
in a substantial number of personal computers, gives the advantage of emotions in favour of
piracy. Thus, the people who may not be able to afford various other softwares and
applications that might run on both the Operating Systems, are likely going to prefer
Windows over MacOS where Microsoft gains the lead in the Market Share due to its
allowance of piracy in Developing and Underdeveloped Countries.
Conclusion
It may be concluded that piracy does impact the Socio-Economic conditions of a Society but
is also largely affected by how the original creators as well as rights holders take a stand on
matters of piracy. The stands taken by both Microsoft as well as Apple are as a result of
placing their products in the market and how they want to capture the market as well as how
they portray their softwares to the general public and the consumers. Consequently, both
approaches differ largely and though may be right in their own perspectives, the approach
adopted by Microsoft in Developing and Underdeveloped Countries largely undermines the
spirit of the Intellectual Property Laws that are enacted in a country. This means that such
practices give a priority to the business over the laws of the land and therefore, should be
stopped with immediate effect. However, no law can achieve its objectives if it is too ahead
of its time and therefore, in countries like India, piracy of Operating Systems still exists as a
major source of income for local markets. However, for neither Apple nor Microsoft, is it
possible to completely eradicate piracy. Piracy of products like music may even happen by
ripping Audio or Video CDs and DVDs for commercial purposes. This is well beyond their
control and is not something the companies can do anything about.
Bibliography
1. Copyrights Act, 1957
2. Donoghue vs. Allied Newspapers Ltd., (1937) 3 All ER 503 (Ch.D).
3. Barbara Taylor Bradford vs. Sahara Media Entertainment Ltd., 2004 (28) PTC 474
(Cal) (DB).
4. Open Source Yoga Unity vs. Bikram Choudhury, 74 USPQ 2d (BNA) 1434.
5. ‘Fair use’ (Wikipedia, 17 November 2022) https://en.wikipedia.org/wiki/Fair_use
accessed on 18 November 2022.
6. ‘Explained: Microsoft knows most PC owners use pirated Windows, but why it still
won’t take any action’ (Firstpost, 01 June 2022)
https://www.firstpost.com/tech/news-analysis/explained-microsoft-knows-most-pc-
owners-use-pirated-windows-but-why-it-still-wont-take-any-action-10746321.html/
amp accessed on 23 November 2022.
7. https://www.gnu.org/proprietary/malware-apple.en.html.
8. ‘Apple vs. Microsoft Business Model: What's the Difference?’ (Investopedia, 26
January 2022) https://www.investopedia.com/articles/markets/111015/apple-vs-
microsoft-vs-google-how-their-business-models-compare.asp accessed on 23
November 2022.