Copyright infringement is the use of copyrighted material without the right to do so, whether the use is for profit or not.
Such rights can be acquired through an explicit contract with the creator; with their publisher; through the normal rights acquired by the purchaser of a work (like making digital copies for personal use in US law); through fair use or fair dealing provisions of law; through a statutory license, like video and audio tape or music CDs, but not computer CDs in US law. Many works are not covered by copyright. Examples of the latter are collections of facts or accurate reproductions of works in the public domain in US law; or works whose copyright term has expired. Copyright notices are often not a good indication of whether a use will be infringing; they give some indication of when copyright will expire, who to contact if a permission request is needed and suggest the inabiliy to make uninfringing use of a substantial portion of the complete work if it's still within the copyright term.
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2 The term "software piracy" 3 Software licenses 4 Existing and proposed laws 5 Preventing copyright infringement |
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:
Copyright infringement in software
Software piracy is extremely common in China, Brazil, and several other parts of the world.
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:
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 gratuitous 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:
The term "software piracy"
Software licenses
Existing and proposed laws
Preventing copyright infringement
See also: Warez, Copyright, Copyleft, Abandonware, free software, reverse piracy, software piracy, intellectual property right infringement, Wikipedia:Copyrights, Wikipedia:Possible copyright infringements.
