Copyright infringement
Copyright infringement is the use of works protected by copyright without permission for usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to produce derivative works. The copyright holder is usually the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalise copyright infringement.
Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, or the fraudulent imitation of a product or brand, is sometimes prosecuted via the criminal justice system.
Estimates of the actual economic impact of copyright infringement vary widely and depend on other factors. Nevertheless, copyright holders, industry representatives, and legislators have long characterised copyright infringement as piracy or theft – language which some US courts now regard as pejorative or otherwise contentious.
Terminology
The terms piracy and theft are often associated with copyright infringement. The original meaning of piracy is "robbery or illegal violence at sea", but the term has been in use for centuries as a synonym for acts of copyright infringement. Theft, meanwhile, emphasises the potential commercial harm of infringement to copyright holders. However, copyright is a type of intellectual property, an area of law distinct from that which covers robbery or theft, offences related only to tangible property. Not all copyright infringement results in commercial loss, and the US Supreme Court ruled in 1985 that infringement does not easily equate with theft.This was taken further in the case MPAA v. Hotfile, where Judge Kathleen M. Williams granted a motion to deny the MPAA the usage of words whose appearance was primarily "pejorative". This list included the word "piracy", the use of which, the motion by the defence stated, serves no court purpose but to misguide and inflame the jury.
"Piracy"
The term "piracy" has been used to refer to the unauthorised copying, distribution and selling of works in copyright. In 1668 publisher John Hancock wrote of "some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies" in the work A String of Pearls: or, The Best Things Reserved till Last by Thomas Brooks. Over time the metaphor mostly used in the book-trade became more common, such that the use of the word 'pirate' itself to describe unauthorised publishing of books was attested to in Nathan Bailey's 1736 dictionary An Universal Etymological English Dictionary:'One who lives by pillage and robbing on the sea. Also a plagiary'
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. Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights requires criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale." 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".
Richard Stallman and the GNU Project have criticised the use of the word "piracy" in these situations, saying that publishers use the word to refer to "copying they don't approve of" and that "they imply that it is ethically equivalent to attacking ships on the high seas, kidnapping and murdering the people on them."
"Theft"
Copyright holders frequently refer to copyright infringement as theft, "although such misuse has been rejected by legislatures and courts". The slogan "Piracy is theft" was used beginning in the 1980s, and is still being used. 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 authorisation. Courts have distinguished between copyright infringement and theft. For instance, the United States Supreme Court held in Dowling v. United States 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.
"Freebooting"
The term "freebooting" has been used to describe the unauthorised copying of online media, particularly videos, onto websites such as Facebook, YouTube or Twitter. The word itself had already been in use since the 16th century, referring to pirates, and meant "looting" or "plundering". This form of the word – a portmanteau of "freeloading" and "bootlegging" – was suggested by YouTuber and podcaster Brady Haran in the podcast Hello Internet. Haran advocated the term in an attempt to find a phrase more emotive than "copyright infringement", yet more appropriate than "theft".Motivation
Some of the motives for engaging in copyright infringement are the following:- Pricing unwillingness or inability to pay the price requested by the legitimate sellers
- Testing and evaluation try before paying for what may be bad value
- Unavailability no legitimate sellers providing the product in the language or 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 of restricting legitimate use or comes with non-skippable advertisements and anti-piracy disclaimers, which are removed in the unauthorised 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
- Freedom of information Some people engage in copyright infringement due to opposition to copyright law or a belief that certain information should be freely accessible.
- Protest/boycotting - Infringement can be used to protest against specific companies they disagree with. A person may pirate a company to avoid giving money to a company as a way to voice disapproval of their business practices or perceived greed especially if they want or need the copyrighted work but don’t want to support them. Others use copyrighted art without permission to create protest arts for social movements or political commentary.
Cara Cusumano, director of the Tribeca Film Festival, stated in April 2014: "Piracy is less about people not wanting to pay and more about just wanting the immediacypeople saying, 'I want to watch Spiderman right now' and downloading it". The statement occurred during the third year that the festival used the Internet to present its content, while it was the first year that it featured a showcase of content producers who work exclusively online. Cusumano further explained that downloading behaviour is not merely conducted by people who merely want to obtain content for free:
I think that if companies were willing to put that material out there, moving forward, consumers will follow. It's just that want to consume films online and they're ready to consume films that way and we're not necessarily offering them in that way. So it's the distribution models that need to catch up. People will pay for the content.
In response to Cusumano's perspective, Screen Producers Australia executive director Matt Deaner clarified the motivation of the film industry: "Distributors are usually wanting to encourage cinema-going as part of this process and restrict the immediate access to online so as to encourage the maximum number of people to go to the cinema." Deaner further explained the matter in terms of the Australian film industry, stating: "there are currently restrictions on quantities of tax support that a film can receive unless the film has a traditional cinema release."
In a study published in the Journal of Behavioural and Experimental Economics, and reported on in early May 2014, researchers from the University of Portsmouth in the UK discussed findings from examining the illegal downloading behaviour of 6,000 Finnish people, aged seven to 84. The list of reasons for downloading given by the study respondents included money saving; the ability to access material not on general release, or before it was released; and assisting artists to avoid involvement with record companies and movie studios.
In a public talk between Bill Gates, Warren Buffett, and Brent Schlender at the University of Washington in 1998, Bill Gates commented on piracy as a means to an end, whereby people who use Microsoft software illegally will eventually pay for it, out of familiarity, as a country's economy develops and legitimate products become more affordable to businesses and consumers:
Although about three million computers get sold every year in China, people don't pay for the software. Someday they will, though. And as long as they're going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade.