Copyright infringement is the use of copyrighted material without the
express consent or, usually, written permission from the copyright holder.
Infringement can occur whether or not the infringing work is used for
profit. Not all use of copyrighted material without authorization of the
copyright owner or holder is infringement. It may be fair use under United
States law or fair dealing under the copyright laws of other countries.
Copyright infringement in software
This form of copyright infringement has typically been called software
piracy. It is the unauthorized and illegal duplication of copyrighted
software. There are four main practices associated with software piracy:
* Creating a copy to serve as a backup — seen as a fundamental
right of the software-buyer in some countries, i.e., Germany; it can
nevertheless represent an illegal act, depending on the laws and the
case law interpretations of those laws, currently undergoing changes in
many countries.
* Creating a copy and giving it to someone else for free — normally
not legal. May be legal under special circumstances such as fair use
and fair dealing.
* Reselling or renting the original software (and maybe keeping a copy)
— also not necessarily legal. The buyer does not buy the software
but pays for the right to use the software. It is not a simple transfer
of property as buying and then selling again e.g. a car, however
sometimes it is possible to transfer the license if it was not
purchased with a limitation (i.e. the lower cost for
educational/registered student use only).
* Creating a copy and selling it — This is the act most people
refer to as software piracy. Illegal in most countries.
The term "software piracy" is more correctly described as copyright
infringement: Some object that copyright holders' use of the term "piracy"
is a dysphemism, making the unauthorized reselling of copyrighted works
morally equivalent to the violent actions of pirates -- robbers on the high
seas, who often murder and rape their victims. Another complication of the
pirate analogy is that pirates actually deprive their victims of their
property, whereas software pirates only deprive proprietary software
companies of potential revenue, which may not actually exist because of
market elasticity. For example, if one hundred copies of a product are sold,
and five hundred copied illegally, it does not necessarily follow that five
hundred extra copies would have been sold at the full price if unauthorized
copying became impossible. Sometimes the unauthorized copies may in fact
encourage the marketing of the software and allowing some piracy may create
an interest and encourage corporate and institutional users to purchase site
licenses for their students or employees who may recommend purchase of these
licenses after their trial of the pirated software.
See Software Piracy as Price Control for the possible role that Software
Piracy in moderation plays in keeping prices down.
However, the use of "piracy" to refer to copyright infringement is well
accepted by those uninvolved in the practice; it is the second meaning of
the term given by the Oxford English Dictionary and the first documented use
is from the 18th century:
1771 LUCKOMBE Hist. Print. 76 They..would suffer by this act of piracy,
since it was likely to prove a very bad edition.
1808 Med. Jrnl. XIX. 520 He is charged with "Literary Piracy", and an
"unprincipled suppression of the source from whence he drew his
information".
1855 BREWSTER Newton I. iv. 71 With the view of securing his invention
of the telescope from foreign piracy.
Some people believe that, in some jurisdictions, unauthorized users may not
be violating any software license that is created on consent by contract. By
using an unauthorized copy, they do not become parties to the sales
contract, and hence not bound by the license. Only the original purchaser
may be found in infringement. However, most software requiring installation
has a licensing dialogue that requires the end user to accept the license
before installation is completed (referred to as a "click-through license"),
which obviously protects subsquent installations. Most, if not all software
now has a first installation license that a user agrees to by opening the
shrink-wrap around the product (a "shrink-wrap license"), and even though
such installation is gratuitious it may nevertheless be enough to create a
contract between the copyright holder and the end user (who benefits from
the use of the software). However, as the second installation in the shrink
wrap licence may not be done by the person who removed the original shrink
wrap (or opened an sealed envelope or some such variation), the
click-through licence is preferred because it will bind all subsequent installations.
Although the question hasn't been addressed in court, some journalists have
questioned whether such a license is enforceable if a minor completes the
licensing dialogue, since minors are not allowed to enter into contracts in
some jurisdictions and any contracts they do sign are legally void unless
confirmed, though many jurisdictions do recognize that rental and sales
contracts to minors made in the regular course of business as being valid
(otherwise children could take candy from candy stores without any legal
consequences and their parents could ask for money back after playing video
games in shopping malls).
To many of these attempts at circumventing these end user licencing
agreements (EULA) software vendors counter that if a user somehow obtains
software without agreeing to or becoming bound by the end user license
agreement, then they do not have any license to use the software at all.
Under the proposed US Uniform Computer Information Transactions Act,
(UCITA), a controversial model law that has been adopted in Virginia and
Maryland, software manufacturers are granted broad rights to shutdown
software pirates without court intervention similar to some of the
provisions found in Title II of the US DMCA, the Online Copyright
Infringement Liability Limitation Act, which allows copyright holders to
demand that an online service provider (OSP) expeditiously block access to
infringing materials. If the OSP complies, it is granted a safe harbor,
providing it immunity from infringement claims. If it doesn't comply, it
doesn't become liable, but may instead rely on the protection of the
Communications Decency Act.
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 software manufacturer has some kind of software, dongle
or password protection device installed in the software 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 prevention mechanisms that
have malfunctioned, have caused the software to become inoperable or which
are no longer supported by their manufacturers.
In some developing countries, software piracy is not considered illegal. In
Russia, which is not a signatory to the Berne Convention it is legal to copy
any software as long as it is not in the Russian language. Most commercially
exploited software is being made in the United States, Japan and Europe,
hence for those located in economically disadvantaged economies it can be
prohibitively expensive to pay for all the end user licenses for those
products rather than to purchase just one license and then copy the software
without paying any additional licensing fees. Some critics in the developing
countries of the world see this as an indirect technology transfer tax on
their country preventing technological advancement and they use this type of
argument when refusing to accept the intellectual property laws that are in
force in most technologically advanced countries. This idea applies to
patent and trademark laws as well.
Some approaches used for prevention of software copyright infringement:
* Copy protection and Digital rights management: The addition of software
or hardware systems to make the copying and/or distributing more
difficult.
* Legal action against infringers or those who make infringement
possible: penalties can be extreme and vary from country to country.
The recent RIAA settlement with students operating music download file
servers from several universities in the US (inlcuding Princeton
University, Rensselaer Polytechnic Institute and Michigan Technological
University is an example of this type of aggressive protection policy
(though not software piracy but just plain digital music copyright
piracy).
