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Copyright infringement of software

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Copyright infringement of software

For information on handling copyright concerns in World Heritage Encyclopedia, see World Heritage Encyclopedia:Copyright violations.
"Illegal Music" redirects here. For the record label, see Illegal Musik.

Copyright infringement is the use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce, distribute, display or perform the copyrighted work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator.

Colloquial terminology

Copyright infringement is often associated with the terms piracy and theft. Although piracy literally means brazen high-seas robbery and kidnapping, it has a long history of use as a synonym for acts which were later codified as types of copyright infringement. Theft is hyperbole, emphasizing the potential commercial harm of infringement to copyright holders; however, not all copyright infringement results in commercial loss, and the U.S. Supreme Court has ruled that infringement does not easily equate with theft.[1]


The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne in 1710, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labelled pirates as early as 1603.[2] The term "piracy" has been used to refer to the unauthorized copying, distribution and selling of works in copyright.[3] Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term "piracy" in relation to copyright infringement, stating "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection."[4] Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale."[5] Piracy traditionally refers to acts of copyright infringement intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as "piracy."[3]


Copyright holders frequently refer to copyright infringement as theft. In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[6] Courts have distinguished between copyright infringement and theft. For instance, the United States Supreme Court held in Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property. Instead, "interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: '[...] an infringer of the copyright.'" The court said that in the case of copyright infringement, the province guaranteed to the copyright holder by copyright law—certain exclusive rights—is invaded, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.[1]


Some of the motives for engaging in copyright infringement are the following:[7]

  • Pricing – unwillingness or inability to pay the price requested by the legitimate sellers
  • Unavailability – no legitimate sellers providing the product in the country of the end-user: not yet launched there, already withdrawn from sales, never to be sold there, geographical restrictions on online distribution and international shipping
  • Usefulness – the legitimate product comes with various means (DRM, region lock, DVD region code, Blu-ray region code) of restricting legitimate use (backups, usage on devices of different vendors, offline usage) or comes with annoying non-skippable advertisements and anti-piracy disclaimers, which are removed in the pirated product making it more desirable for the end-user
  • Shopping experience – no legitimate sellers providing the product with the required quality through online distribution and through a shopping system with the required level of user-friendliness
  • Anonymity - Downloading works does not require identification whereas downloads directly from the website of the copyright owner often require a valid email address and/ or other credentials

Developing world

In Media Piracy in Emerging Economies, the first independent international comparative study of media piracy with center on Brazil, India, Russia, South Africa, Mexico and Bolivia, “high prices for media goods, low incomes, and cheap digital technologies” are the chief factors that lead to the global spread of media piracy, especially in emerging markets.[8]

According to the same study, even though digital piracy inflicts additional costs on the production side of media, it also offers the main access to media goods in developing countries. The strong tradeoffs that favor using digital piracy in developing economies dictate the current neglected law enforcements toward digital piracy.[9] In China, the issue of digital piracy is not merely legal, but social – originated from the high demand for cheap and affordable pirated goods as well as the governmental connections of the businesses which produce such goods.[10]

Existing and proposed laws

Main articles: History of copyright law, Digital Millennium Copyright Act, Protect IP Act, Stop Online Piracy Act and Software copyright

Most countries extend copyright protections to authors of works. In countries with copyright legislation, enforcement of copyright is generally the responsibility of the copyright holder.[11] However in several jurisdictions there are also criminal penalties for copyright infringement.[12]

Civil law

In the U.S., copyright infringement is sometimes confronted via lawsuits in civil court, against alleged infringers directly, or against providers of services and software that support unauthorized copying. For example, major motion-picture corporation MGM Studios filed suit against P2P file-sharing services Grokster and Streamcast for their contributory role in copyright infringement.[13] In 2005, the Supreme Court ruled in favor of MGM, holding that such services could be held liable for copyright infringement since they functioned and, indeed, willfully marketed themselves as venues for acquiring copyrighted movies. The MGM v. Grokster case did not overturn the earlier Sony decision, but rather clouded the legal waters; future designers of software capable of being used for copyright infringement were warned.[14]

In the United States, copyright term has been extended many times over[15] from the original term of 14 years with a single renewal allowance of 14 years, to the current term of the life of the author plus 70 years. If the work was produced under corporate authorship it may last 120 years after creation or 95 years after publication, whichever is less.

Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages.[5]

Criminal law

Main article: Criminal Copyright Law in the United States

Punishment of copyright infringement varies case-by-case across countries. Convictions may include jail time and/or severe fines for each instance of copyright infringement. In the United States, willful copyright infringement carries a maximum penalty of $150,000 per instance.[16]

Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries establish criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale".[5] Copyright holders have demanded that states provide criminal sanctions for all types of copyright infringement.[11]

The first criminal provision in U.S. copyright law was added in 1897, which established a misdemeanor penalty for “unlawful performances and representations of copyrighted dramatic and musical compositions” if the violation had been “willful and for profit.”[17] Criminal copyright infringement requires that the infringer acted “for the purpose of commercial advantage or private financial gain." 17 U.S.C. § 506(a).[18] To establish criminal liability, the prosecutor must first show the basic elements of copyright infringement: ownership of a valid copyright, and the violation of one or more of the copyright holder’s exclusive rights. The government must then establish that defendant willfully infringed or, in other words, possessed the necessary mens rea. Misdemeanor infringement has a very low threshold in terms of number of copies and the value of the infringed works.

The ACTA trade agreement, signed in May 2011 by the United States, Japan, Switzerland, and the EU, requires that its parties add criminal penalties, including incarceration and fines, for copyright and trademark infringement, and obligated the parties to actively police for infringement.[11][19][20]

United States v. LaMacchia 871 F.Supp. 535 (1994) was a case decided by the United States District Court for the District of Massachusetts which ruled that, under the copyright and cybercrime laws effective at the time, committing copyright infringement for non-commercial motives could not be prosecuted under criminal copyright law. The ruling gave rise to what became known as the "LaMacchia Loophole," wherein criminal charges of fraud or copyright infringement would be dismissed under current legal standards, so long as there was no profit motive involved.[21]

The United States No Electronic Theft Act (NET Act), a federal law passed in 1997 in response to LaMacchia, provides for criminal prosecution of individuals who engage in copyright infringement under certain circumstances, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%. The court's ruling explicitly drew attention to the shortcomings of current law that allowed people to facilitate mass copyright infringement while being immune to prosecution under the Copyright Act.

Proposed laws such as the Stop Online Piracy Act broaden the definition of "willful infringement", and introduce felony charges for unauthorized media streaming. These bills are aimed towards defeating websites that carry or contain links to infringing content, but have raised concerns about domestic abuse and internet censorship.

Countries where sharing files without profit is legal

Downloading copied music is legal in some countries in the context of the copyright, such as Canada,[22] The Netherlands,[23] and Spain,[24] provided that the songs are not sold. In Canada it is legal to download any copyrighted file as long as it is for noncommercial use, but it is illegal to distribute the copyrighted files (e.g. by uploading them to a P2P network).[25] In addition, some countries, like Canada and Germany, have limited the penalties for non-commercial copyright infringement. For example, statutory damages in Canada for non-commercial copyright infringement is capped at $5,000.[26] Germany has even passed a bill to limit the fine for individuals accused of sharing music and movies to $200.[27]

On September 20, 2013, the Spanish government approved new laws that will take effect at the beginning of 2014. The approved legislation will mean that website owners who are earning “direct or indirect profit,” such as via advertising links, from pirated content can be imprisoned for up to six years. However, peer-to-peer file-sharing platforms and search engines are exempt from the laws.[28]

The DMCA and anti-circumvention laws

Title I of the US DMCA, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act has provisions that prevent persons from "circumvent[ing] a technological measure that effectively controls access to a work". Thus if a distributor of copyrighted works has some kind of software, dongle or password access device installed in instances of the work, any attempt to bypass such a copy protection scheme may be actionable — though the US Copyright Office is currently reviewing anticircumvention rulemaking under DMCA — anticircumvention exemptions that have been in place under the DMCA include those in software designed to filter websites that are generally seen to be inefficient (child safety and public library website filtering software) and the circumvention of copy protection mechanisms that have malfunctioned, have caused the instance of the work to become inoperable or which are no longer supported by their manufacturers.

Online intermediary liability

Whether Internet intermediaries are liable for copyright infringement by their users is a subject of debate and court cases in a number of countries.[29]

Definition of intermediary

Internet intermediaries were formerly understood to be internet service providers (ISPs). However, questions of liability have also emerged in relation to other Internet infrastructure intermediaries, including Internet backbone providers, cable companies and mobile communications providers.[30]

In addition, intermediaries are now also generally understood to include Internet portals, software and games providers, those providing virtual information such as interactive forums and comment facilities with or without a moderation system, aggregators, universities, libraries and archives, web search engines, chat rooms, web blogs, mailing lists, and any website which provides access to third party content through, for example, hyperlinks, a crucial element of the World Wide Web.

Litigation and legislation concerning intermediaries

Early court cases focused on the liability of Internet service providers (ISPs) for hosting, transmitting or publishing user-supplied content that could be actioned under civil or criminal law, such as libel, defamation, or pornography.[31] As different content was considered in different legal systems, and in the absence of common definitions for "ISPs," "bulletin boards" or "online publishers," early law on online intermediaries' liability varied widely from country to country. The first laws on online intermediaries' liability were passed from the mid-1990s onwards.

The debate has shifted away from questions about liability for specific content, including that which may infringe copyright, towards whether online intermediaries should be generally responsible for content accessible through their services or infrastructure.[32]

The U.S. Digital Millennium Copyright Act (1998) and the European E-Commerce Directive (2000) provide online intermediaries with limited statutory immunity from liability for copyright infringement. Online intermediaries hosting content that infringes copyright are not liable, so long as they do not know about it and take actions once the infringing content is brought to their attention. In U.S. law this is characterized as "safe harbor" provisions. Under European law, the governing principles for Internet Service Providers are "mere conduit", meaning that they are neutral 'pipes' with no knowledge of what they are carrying; and 'no obligation to monitor' meaning that they cannot be given a general mandate by governments to monitor content. These two principles are a barrier for certain forms of online copyright enforcement and they were the reason behind an attempt to amend the European Telecoms Package in 2009 to support new measures against copyright infringement.[33]

Peer-to-peer issues

Peer-to-peer file sharing intermediaries have been denied access to safe harbor provisions in relation to copyright infringement. Legal action against such intermediaries, such as Napster, are generally brought in relation to principles of secondary liability for copyright infringement, such as contributory liability and vicarious liability.[34]

These types of intermediaries do not host or transmit infringing content, themselves, but may be regarded in some courts as encouraging, enabling or facilitating infringement by users. These intermediaries may include the author, publishers and marketers of peer-to-peer networking software, and the websites that allow users to download such software. In the case of the BitTorrent protocol, intermediaries may include the torrent tracker and any websites or search engines which facilitate access to torrent files. Torrent files don't contain copyrighted content, but they may make reference to files that do, and they may point to trackers which coordinate the sharing of those files. Some torrent indexing and search sites, such as The Pirate Bay, now encourage the use of magnet links, instead of direct links to torrent files, creating another layer of indirection; using such links, torrent files are obtained from other peers, rather than from a particular website.

Since the late 1990s, copyright holders have taken legal actions against a number of peer-to-peer intermediaries, such as Napster, Grokster, eMule, SoulSeek, BitTorrent and Limewire, and case law on the liability of Internet service providers (ISPs) in relation to copyright infringement has emerged primarily in relation to these cases.[35]

Nevertheless, whether and to what degree any of these types of intermediaries have secondary liability is the subject of ongoing litigation. The decentralised structure of peer-to-peer networks, in particular, does not sit easily with existing laws on online intermediaries' liability. The BitTorrent protocol established an entirely decentralised network architecture in order to distribute large files effectively. Recent developments in peer-to-peer technology towards more complex network configurations are said to have been driven by a desire to avoid liability as intermediaries under existing laws.[36]

Limitations and preventative measures

Copyright does not protect the technical form nor R&D[37] of an original work. Copyright contains a substantial similarity requirement to determine whether the work falls under the fair use clause.

Evaluation of alleged copyright infringement in a court of law may be non-trivial; if an original work is alleged to have been modified, then tests such as the Abstraction-Filtration-Comparison test (AFC Test)[38][39] are used to detect infringement. The time and costs required to apply this test naturally vary based on the size and complexity of the copyrighted material. Furthermore, there is no standard or universally accepted test; some courts have rejected the AFC Test it in favor of narrower testing criteria.

Different types of preventative measures are enacted to lessen or halt digital copyright infringement. Strategies include education, legislation, deterrence, and global agreements.[40] It is vital to have foreign and domestic publisher alliances, so they may work together to combat the wrongdoing to their companies.[40]

A major strategy in the game to stop piracy is to educate about the laws and sanctions involved if one was to engage in copyright infringement. By knowing of the sanctions that violators may be sentenced to if they do engage in this behavior, there is the potential to change the attitudes and beliefs of the person thinking of engaging in this activity.[40][40] While increasing consequences has some power to deter infringing behavior, the behavior remains widespread, especially in developing countries. Certain publishers have tried to lock down their products or mobile platforms using digital rights management technology, which has been a controversial practice.

In addition to legal maneuvers to curb copyright infringement, the motion picture industry tried different ways of distribution. Instead of waiting months after the debut of a movie to release it on DVD or video-on-demand, movies like Bubble (2005), were released on all formats at the same time. Although, the motion picture industry released it on different dates in different regions and still delayed it from the theatrical release. Both the industry and advocates of file-sharing believe that further reducing such distribution "windowing" will reduce copyright infringement. Nevertheless, the industry's position is that with the Internet being a global entity, it will still take a combination of worldwide legal agreements, an agency tasked with enforcing the crimes, and new ways of selling products to reduce copyright infringement.

Certain free software licenses, most notably GNU General Public License (GPL) substantially rely on existing copyright law. It is not possible to enforce GPL other than within the framework of existing copyright law.[41]

Economic impact of copyright infringement

Industry estimates

In 2008 The Motion Picture Association of America reported that its six major member companies lost $6.1 billion to piracy.[42][43]

The BSA and IDC claim that losses from software piracy in 2009 have exceeded $51 billion, and that "Lowering software piracy by just 10 percentage points during the next four years would create nearly 500,000 new jobs and pump $140 billion into ailing economies."[44][45]

According to a BSA/IDC studies, the highest piracy rate comes from Armenia, with a piracy rate of 93%. China and India are at No. 17 and No. 41 respectively, with 82% and 69% of recorded software piracy rates.[46] The lowest piracy rate, according to survey, is observed in USA, at 20%.

Criticism of industry estimates

The methodology of studies utilized by industry spokespeople has been heavily criticized. Inflated claims for damages and allegations of economic harm are common in copyright disputes.[47][48] Some studies and figures, including those cited by the MPAA and RIAA with regards to the economic effects of film and music downloads, have been widely disputed as based on questionable assumptions which resulted in statistically unsound numbers.[49][50]

In one extreme example, the RIAA claimed damages against Limewire totaling $75 trillion - more than the global GDP - and "respectfully" disagreed with the judges ruling that such claims were "absurd".[51]

Economic impact of infringement in emerging markets

The 2011 Business Software Alliance Piracy Study Standard estimates the total commercial value of pirated software to be at $59 billion in 2010, with emerging markets accounting for $31.9 billion, over half of the total. Furthermore, mature markets for the first time received less PC shipments than emerging economies in 2010, making emerging markets now responsible for more than half of all computers in use worldwide. In addition with software piracy rates of 68 percent comparing to 24 percent of mature markets, emerging markets thus possess the majority of the global increase in the commercial value of pirated software. China continues to have the highest commercial value of pirated software at $8.9 billion among developing countries and second in the world behind the US at $9.7 billion in 2011.[52][53] In 2011, the Business Software Alliance announced that 83 percent of software deployed on PCs in Africa has been pirated (excluding South Africa).[54]

Some countries distinguish corporate piracy from private use, which is tolerated as a welfare service. This is the leading reason developing countries refuse to accept or respect copyright laws. Traian Băsescu, the president of Romania, stated that "piracy helped the young generation discover computers. It set off the development of the IT industry in Romania."[55]

Pro-open culture organizations

Anti-copyright infringement organizations

See also


Further reading

External links

  • A 2000 article by Courtney Love addressing copyright infringement of music
  • A 2001 reprint of two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out.
  • A 2003 article on CD Piracy in China from the music webzine
  • An undated essay on Piracy in the Philippines by Tilman Baumgärtel
  • A 2008 article illustrating the effect of piracy on video games
  • An article for students explaining the difference between plagiarism and copyright infringement
  • How Corporate Law Inhibits Social Responsibility
  • MP3 Newswire article challenges inflated copyright infringement claims by media companies
  • US Copyright Office
gl:Piratería (dereito de autor)

he:הפרת זכויות יוצרים mk:Нарушување на авторски права no:Illegal kopiering fi:Tekijänoikeusloukkaus uk:Піратство (інтелектуальна власність)

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