is a independent organization pursuing “copyright enforcement” for pirated software, targeting studios with sting operations and lawsuits. Recently, I challenged them to demonstrate that they have other developers onboard aside from Waves Audio. That seems reasonable, given their website claims they have been contracted by “many of the biggest names in the industry” and that they’re the “leading rights advocate for the audio software and digital content industry.”

Ross Johnson of PR firm Strick and Company contacted me this week to say BanPiracy had responded to my challenge and, presumably, various criticisms these tactics have attracted. (Paris Hilton and Halliburton have turned to his firm, which is known for defending companies in crisis.) Ross writes:

“As a big fan of the lively discussions on your user forums relating to BanPiracy, I have encouraged my client to respond to your challenge recently posted.”

The response is titled “BanPiracy Says Thanks to the Brave Ones on Its Anniversary!” and was sent to various media outlets. Now, I’m likewise a fan of lively debate, so I want to thank Ross for encouraging BanPiracy to join the discussion.

But the answer to my challenge, evidently, is no, they can’t demonstrate that they have any other developers onboard. They even acknowledge that the fact that they’re a for-profit endeavor might “be a tough sell.” They manage to copy and paste supportive comments from a trade group and an anti-piracy manufacturer, but take those quotes out of context (including, bizarrely, a comment left here on CDM by one of our own contributors — he has a few, ahem, words for BanPiracy in comments now that they’ve distorted what he said).

Here’s the full response, penned by Tomer Elbaz and Michael T. David, COO and CEO respectively. I’ll say this: couched in epic battle terminology, it isn’t PR speak:

It’s been a year since BanPiracy, a company devoted to stopping piracy in the audio software industry, was formed. This is our report card to you, our cohorts in an industry that we love, but one that is also in serious trouble.

Has it been lonely walking the walk as one of the only groups willing to enforce copyright protection for our clients? Absolutely. Do we wish we had more support from audio software developers who are getting their software “cracked” and are afraid to stand up for their rights as businessmen? Most definitely. Are we going to stay the course in our battle with pirates who abuse international copyright protections? Bet on it!

This past year has been one of lessons learned. We learned to accept the harsh reality that the way our company was structured — as a for-profit LLC which gets its operating income from the collection of fees from those who are unjustly enriching themselves by using unauthorized software – might be a tough sell to manufacturers accustomed to looking the other way when their copyrights were violated. We learned that those who’ve come to depend on “cracked” software see their illegal activity as an unalienable right to exploit the efforts of talented professionals who labored to author that software.

And we’ve learned that there are brave people that will not be cowed by the noise of the rabble who want to take what’s not legally theirs.

It is a tribute to our industry that it supports such ethical publications as Pro Sound News and its European counterpart, Pro Sound News Europe. Both publications in mid-November published extensively-researched stories about our enforcement efforts. The writers of these stories were not afraid to take their shots at what they perceived as our shortcomings, but they bent over backwards to get both sides of the story, and we at BanPiracy acknowledge their professionalism.

In a Pro Sound News story written by Christopher Walsh, Andrew Kirk of PACE Anti-Piracy Inc., the developer of the ILok and InterLok tools, noted the uneven history of audio software manufacturers fighting the pirates, and noted:

“BanPiracy has a noble goal,” and added that the audio software markets “do need some enforcement – think about a society in where there was no enforcement of law.”

Another of our counterparts in the anti-piracy campaign is Ray Williams, director of the International Music Software Trade Association. We salute Mr. Williams for his efforts, which were heralded in the Pro Sound News story. “Our whole reason for being,” Mr. Williams told PSN, “is to try to have musicians respect the work of the companies who supply their software tools the same way they respect the makers of their hardware tools.”

We at BanPiracy also welcome the voluminous opinions on Internet message boards about out campaign. One of the most interesting challenges to what we’re doing was posted on Peter Kirn’s Create Digital Music website. In referring to the only client we’ve been able to sign for BanPiracy, Waves Audio, Mr. Kirn wrote, “Waves, I put the challenge to you: either demonstrate you have other developers onboard with you, or stop trying to convince people this is an effort on behalf of the industry.”

Mr. Kirn’s theory is that until Waves Audio, the initial client of BanPiracy, is joined by other software developers, any effort by Waves Audio to promote its involvement in BanPiracy is NOT a legitimate effort on behalf of the audio software industry.

A note to Mr. Kirn: The clients of BanPiracy are not asking your permission, or anyone else’s, to stand up to audio software copyright infringers. BanPiracy hopes that others will join Waves Audio in this fight, but the fight will go on as long as there is one man or woman willing to stand shoulder to shoulder with the likes of Adrian Anders, who posted the following in a user forum on Mr. Kirn’s website on November 14, 2007.

“I think the studio owners were being very irresponsible to their paying customers,” Mr. Anders wrote in response to the many proponents of “cracked” software who frequent Mr. Kirn’s website.

Mr. Anders then added:
“Cracked software often causes severe problems in DAW environments and may even contain trojans, viruses, and/or worms that could compromise the data of their clients. Beyond the moral obligation to buy the software they use, [the studio owners] violated the trust of their customers by having potentially damaging software on their machines.”

Count on this, Mr. Anders: You’re not alone in this fight.

By Tomer Elbaz, BanPiracy COO and Michael T. David, BanPiracy CEO, Nov. 20,2007

CDM Responds

Since the cards are out on the table, and this site is singled out several times in BanPiracy’s public statement, I think a brief response of my own is only appropriate.

First, let’s get one thing straight: criticizing a specific means of enforcement is not the same thing as advocating piracy. BanPiracy’s statement attempts to blur those lines, implying an “if you’re not with us, you’re with the pirates” mentality. That’s ridiculous. The real debate here is over BanPiracy’s enforcement tactics and their rhetoric, not whether piracy is a good idea. CDM has been an aggressive advocate of legitimate software use, including commercial software, freeware, and open source tools. BanPiracy is quick to mention “the many proponents of ‘cracked’ software who frequent Mr. Kirn’s website.” Let’s address that as what it is: an attempt to discredit this site. The comments are an open forum. People looking for legitimate software look to CDM; people looking for pirated software elsewhere. I’m happy to let cracked software advocates speak freely here because they are so quickly shot down by users who pay for what they use.

Also, I never said BanPiracy needed my “permission” to pursue legal action — as near as I can tell, this action is within the law and within their rights, as is the ability of the targeted studios to try to defend themselves. But BanPiracy claims in bold type on their website that they represent multiple clients — and yet they admit elsewhere that, in fact, Waves is their only client. Even in this statement, I see a mention of “clients” (plural) and “client” (Waves). The question is not whether BanPiracy can represent Waves’ interests. The question is why does BanPiracy continue to refer to multiple clients and the industry when they in fact represent only the interests of Waves?

In addition to representing Waves, BanPiracy represents its own interests: by their own admission, they stand to make money here. The recent wave of 11 suits in the United States totals $1.7 million in damages, according to one of the Pro Sound News stories cited by BanPiracy. Those lawsuits are based entirely on Waves’ products. No other developer is mentioned. Updated: Pro Sound News Europe estimates damages at $4 million dollars and goes into greater detail on the US litigation.

The Music Software Industry

Now, maybe BanPiracy can claim to represent broader interests, even if they can only demonstrate one client. BanPiracy does manage to find supportive comments from a trade group and anti-piracy product maker, though they lift those comments from a Pro Sound News story from earlier this month. The headlines is “PACE, IMSTA Support BanPiracy.” Andrew Kirk of PACE Anti-Piracy, maker of the iLok and Interlok systems, in fact says some supportive things in that story. Here’s the quote you don’t see copied in the BanPiracy statement, however:

Kirk agrees that “Education will be key,” adding that lawsuits are not market friendly, nor do they fit well into a business model, yet “In some cases, the law is the last resort to flagrant piracy.” The anti-piracy movement is working, says Kirk, evidenced by the 123rd AES Convention. “I can tell you” he asserts, “if piracy rates were equal to the level of seven or more years ago, more than a handful of pro audio software companies and their products would simply not be at AES, nor would they even exist. Just about anyone would agree that this would be detrimental to the market.

So, lawsuits can be damaging to the market, often don’t make business sense, and may be a “last resort.” Oh, and other non-piracy efforts are actually working. That’s an argument I would’ve made, except PACE just made it for me.

BanPiracy also conveniently edits the International Music Software Trade Association quote. If you read the original Pro Sound News story, the group’s director Ray Williams is clear that — unlike the music industry’s RIAA — IMSTA focuses on education, not enforcement. Williams told PSN: “At IMSTA we are focused purely on education and making musicians think about piracy. We want musicians to buy the software they use.” In fact, when the IMSTA launched a recent anti-piracy education campaign, the emphasis was on positive communication with musicians, not litigation and scare tactics. So IMSTA may be “sympathetic”, but if at some point they do decide to openly support BanPiracy, in my view they’ll compromise the very positive image they had worked hard to build. (In fact, I’m disappointed Williams didn’t take this opportunity to more clearly distance what IMSTA is doing from what BanPiracy is doing.)

Cakewalk’s founder and CEO Greg Hendershott is on the Executive Board for the IMSTA. He spoke to us this summer about the cusomer relationship, among other issues. He talked about how piracy has hurt Cakewalk, but defended their decision not to use additional copy protection methods. Whether or not that particular decision is right for every developer, I think Greg speaks really eloquently about the customer relationship in a way that’s very appropriate to this conversation:

“But that doesn’t mean we like people to copy the software. It really comes down to the culture around intellectual property, and establishing your relationship with customers that is about more than just them buying the product, where they can get good support, there is a good community, a good forum for them to interact with you and other customers. So I think if people are buying into a long-term relationship, that’s part of the key to dealing with that issue. And I notice customers really tend to think that way.”

I’m not sure BanPiracy is aware when they quote Adrian Anders that Adrian regularly contributes to CDM, and does a series on free and inexpensive software. Adrian’s extensive knowledge is proof that saying you don’t have enough money is not an excuse for piracy: you can put together an entire software studio using free and affordable software. Adrian is quoted by BanPiracy as follows:

“Cracked software often causes severe problems in DAW environments and may even contain trojans, viruses, and/or worms that could compromise the data of their clients. Beyond the moral obligation to buy the software they use, [the studio owners] violated the trust of their customers by having potentially damaging software on their machines.”

Count on this, Mr. Anders: You’re not alone in this fight.

No, Adrian, you’re not alone — I agree with every word you say. But BanPiracy misappropriated the quote. Adrian wasn’t responding to any commenters at all. He was the first comment, criticizing (rightfully) a studio behaving unprofessionally. In fact, quite a few commenters criticized the studio in that very thread. Many other comments came from paying customers, some of them paying Waves customers — again, not pirates. Many paying customers explicitly said they would spend money on products that compete with Waves’ software. (note: NOT pirate Waves software, BUY someone else’s.) Most importantly, BanPiracy appropriated Adrian’s comment in a forum, distorted the context, changed his meaning, and then used it to support their cause without his permission. Then they sent that out as an “official statement”, evidently on the urging of their PR firm.

So, keeping score, BanPiracy has misrepresented which clients they represent, they’ve misrepresented what I said, and they misrepresented the readers and comments on this site.

I do hope we’ll talk more about finding solutions to piracy. But this really comes down to how to support making great software by legitimate means, whether that’s open source and free business models or commercial models. And that really starts with users and customers. It’s a conversation we’ll continue to have here, for those willing to read it. I hope readers will continue to agree and argue with what I say here; that’s the point. But it does mean you will have to actually read.

BanPiracy Puts Controversial Plans in Motion [Pro Sound News, 11/15]
PACE, IMSTA Support BanPiracy [Pro Sound News, 11/15]
Waves versus cracks: first writs issued in LA [Pro Sound News Europe, 11/14 – includes more details on the damages sought and funding]
BanPiracy Responds: Offical statement released to the forums [Sonic State, 11/21]

Note that the Pro Sound News Europe story suggests BanPiracy might find clients beyond Waves:

“We are in active discussion with a number of companies we met at the AES Convention,” [CEO Michael T.] David concludes, “including software developers.”

Assuming they haven’t been turned off by BanPiracy’s statements, I’m sure any future client would be able to look forward to the same positive reaction from their customer base Waves has gotten.

Studio Busted by Waves Anti-Piracy Police Shares Experience [CDM, 11/14]
Interview: Cakewalk Founder Greg Hendershott, 20 Years On [CDM, 11/12]