Copyright infringement

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For Wikipedia's policy on copyright, see Wikipedia:Copyrights.

Copyright infringement (or copyright violation) is the unauthorized use of material

that is protected by intellectual property rights law particularly the copyright in a manner
that violates one of the original copyright owner's exclusive rights, such as the right to
reproduce or perform the copyrighted work, or to make derivative works that build upon
it. The slang term bootleg (derived from the use of the shank of a boot for the purposes of
smuggling) is often used to describe illicitly copied material.

In many jurisdictions, such as the United States, copyright infringement is a strict liability
tort or crime. This means that the plaintiff or prosecutor must only prove that the act of
copying or actus reus was committed by the defendant, and need not prove guilty intent
or mens rea. Good faith, standing alone, is no defense.

For electronic and audio-visual media, unauthorized reproduction and distribution is

often referred to as piracy or theft (an early reference was made by Alfred Tennyson in
the preface to his poem "The Lover's Tale" in 1879 where he mentions that sections of
this work "have of late been mercilessly pirated".) The legal basis for this usage dates
from the same era, and has been consistently applied until the present time.[1] Critics of
the use of "software piracy" to describe such practices contend that it unfairly compares a
crime that makes no victim - except for those that would have profited from
hypothetically lost sales - to the violent actions of organized thieves and murderers; it
also confuses mere illegal copying of material with the intentional and malicious
penetration of computer systems to which one does not legally have access. As a
consequence, "software piracy" is a somewhat loaded term. "Theft" or "stealing" are
considered even more inflammatory, as well as legally misleading.[2]

Contents
[hide]

• 1 Methods of copyright infringement

• 2 Penalties
• 3 Justification
• 4 Legality
o 4.1 English law
 4.1.1 Criminal offences
• 5 See also
 • 6 Notes

• 7 External links

[edit] Methods of copyright infringement

It has been suggested that this section be split into a new article entitled Piracy
(information). (Discuss)

It has been suggested that VCD peddler be merged into this article or section. (Discuss)

The unlawful downloading and sharing of recorded music in the form of MP3 and other
small, lossy audio files is still widespread, even after the demise of Napster and a series
of infringement suits brought by the American recording industry against music-sharing
individuals seemingly chosen at random. Promotional screener DVDs distributed by
movie studios (often for consideration for awards) are a common source of unauthorised
copying when movies are still in theatrical release, and the MPAA has attempted to
restrict their use. Movies are also still copied by someone sneaking a camcorder into a
movie theater and secretly taping the projection (also known as "CAM"), although such
copies are often of lesser quality than officially released version of the film. Sharing
copied music is legal in many countries, such as Canada, and parts of Europe, provided
that this information is neither advertised, nor that the songs be sold.

Bootleg recordings are musical recordings that have not been officially released by the
artist or their associated management or production companies. They may consist of
demos, outtakes or other studio material, or of illicit recordings of live performances.
Music enthusiasts may use the term "bootleg" to differentiate these otherwise unavailable
recordings from "pirated" copies of commercially released material, but these recordings
are still protected by copyright despite their lack of formal release, and their distribution
is still against the law.

[edit] Penalties
Though many jurisdictions impose penalties for certain blatant acts of copyright
infringement and may try to stop certain infringing imports at the border, copyright
infringement is still mainly prosecuted through private lawsuits by the copyright holder
or their exclusive licensees. When successful, these lawsuits will typically impose
monetary damages against the infringer as well as injunctions against future infringing
uses.

Many infringement claims involve simple cases of copyright infringement where the
copying is obvious. Others, however, are more difficult to resolve because copyright
protection is not limited to exact copying. It is inevitable that creative and commercial
works will take inspiration from the culture at large, and it is often challenging to
determine when this "inspiration" has crossed the line into infringement, especially in the
case of musical works. There also may be a question of whether the allegedly infringed
work is even protected by copyright. Unprotected works may include, for example,
compilations of facts that lack the requisite creativity to be covered by copyright, or those
works that are in the public domain because the copyright term expired.

Copyright notices—often just a simple statement on the work itself of the year protection
was acquired and by whom—are not always a good indication of whether a work is
protected because most countries do not require such formalities, and so lack of notice
does not mean lack of protection. Courts may also subsequently decide in the context of
an infringement suit that the work did not meet the minimum criteria for copyright
protection, even if the work had been previously registered by a government or private
copyright agency. However, copyright notices give at least some indication of whom to
contact if permission is needed, and when a copyright will expire, though the copyright
terms of preexisting works are sometimes legislatively extended (as with the Sonny Bono
Copyright Term Extension Act) or even restored after expiration (as with the Directive on
harmonising the term of copyright protection in the European Union).

To avoid infringement claims, the right to make use of a copyrighted work can be
acquired through an explicit contract or license with the author or publisher, through
purchasing a lawful copy (which may provide a number of rights to the purchaser, as
under the first-sale doctrine), and for certain types of media, statutory licenses (such as
for reproducing and recording musical works under U.S. copyright law). Even without
going through such channels to get prior authorization for use of the copyrighted
material, doctrines such as fair use or fair dealing may provide potentially broad defenses
to infringement claims. The failure of a copyright holder to bring a timely lawsuit against
known infringers may later block such a claim by establishing an implied license, as may
other acts or omissions that could informally signal consent to use the work.

Copyright misuse, the exploitive or restrictive use of a copyright by its legal holder, is
sometimes informally called reverse piracy.

[edit] Justification

It has been suggested that this section be split into a new article entitled Piracy
(information). (Discuss)

Copyright holders and pro-copyright organizations commonly release statistics showing

their estimated losses due to copyright infringement in an attempt to deter the activity.
For example, the MPAA estimates the global cost of the unauthorised copying of films in
2002 to be $3.5 billion.[3] Many, including some engaged in copyright infringement, have
been critical of these figures, arguing that it is unreasonable to assume that every
download of a film represents a lost movie ticket or DVD purchase: a person who
downloads a film may not necessarily have gone to the theater or have purchased a DVD
had the download not been available. Furthermore, there are instances of films benefiting
from the exposure, particularly independent and cult films.

In general, there are a number of rationales used by people making unauthorised copies
of works to morally justify their actions, though not all engaged in the activity do so.
Copyright advocates generally dismiss the validity of these claims.

• Copyright infringement is sometimes claimed as a form of boycott. For example,

selective copying of music published by major record labels can be used to protest
the low percentage of total record sales that is paid back to artists.
• With the try before you buy mentality, if a downloaded album, film or piece of
software is deemed useful the person will then buy it, otherwise it is deleted.
• Conversely, some choose to download only those products which they would
otherwise be unable to afford, reasoning that in so doing they do not damage any
company's profits.
• Many legitimate products are unavailable in parts of the world, as they are often
too expensive for most of the local population to afford. In much of the third
world, even people who could normally afford to buy legitimate products can't do
so, as unauthorised versions are the only versions available.

Copyright advocates point to an economic argument called the free rider problem to
explain the moral downside to copyright infringement. This argument is usually used by
economists to describe the disadvantage of voluntary collective action because even
when use of a product has no cost to the companies associated with its production as theft
does, it is claimed that the lack of financial contribution from the person infringing the
copyright reduces the company's incentive to continue development.

[edit] Legality
In most jurisdictions, copyright infringement may be established by reproduction of the
copyrighted work. This reproduction can often be shown by the presence of an authorized
electronic copy of the work on a server. Most common defenses to copyright
infringement, such as the First sale doctrine and Fair use, do not fare well in courts.

The first sale doctrine is a defense to infringement of the distribution right. It permits a
lawful purchaser of a copyrighted work to resell or otherwise dispose of it. This,
however, is not a defense to the reproduction right.

In addition, fair use is an equitable defense, but its application will vary greatly
depending on the facts and circumstances of the case. Most courts apply some form of
balancing test examining the scope of infringement, the effect on the copyright owner's
rights (eg. his or her ability to sell the work), the amount of the work copied, and the
purpose of the infringement. Courts have been somewhat hostile to defendants asserting
non-commercial use. In small scale cases, courts are more receptive to arguments
regarding the effect on the copyright owner's market.
Important loopholes in the United States were closed with the passage of the No
Electronic Theft Act (NET Act). Historically, the criminal copyright law required the
infringement to be for financial gain. Among other things, the NET Act altered the
definition of financial gain to include bartering and trading. In addition, members of
warez groups may also prosecuted for their participation in a criminal enterprise.

[edit] English law

In English law, any modification of data stored on a computer so that unauthorised access
is gained to software packages, games, movies, and music would be a criminal offence
under s3 Computer Misuse Act 1990. So, if a read-only music CD is placed in a PC drive
and the contents loaded into the computer's memory for playing, any crack that allows the
music to be copied and stored on the machine or an MP3 player would commit the
offence in theory but, so far, there have been no prosecutions on this set of facts. More
generally, ss16 and 20 Copyright, Designs & Patents Act 1988 (as amended by the
Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002) protect
copyrighted materials, and people who distribute and download copyrighted recordings
without permission are liable to face civil actions for damages and penalties (the largest
to date is £6,500, or $12,120.55). As in the United States, the enforcement agencies are
able to identify the IP addresses and the ISPs are obliged to disclose the name and
address of the owner of each such internet account.

[edit] Criminal offences

For the most part, the criminal law is only used for commercial copyright infringement
with one exception, and an offence is committed when, knowing or reasonably suspecting
that the files are illegal copies, and without the permission of the copyright owner, a
person:

• makes unauthorised copies e.g. burning music files or films on to CD-Rs or DVD-
Rs;
• distributes, sells or hires out unauthorised copies of CDs, VCDs and DVDs;
• on a larger scale, distributes unauthorised copies as a commercial enterprise on
the internet;
• possesses unauthorised copies with a view to distributing, selling or hiring these
to other people;
• while not dealing commercially, distributes unauthorised copies of software
packages, books, music, games, and films on such a scale as to have a measurable
impact on the copyright owner's business.
• stealing someone else's original copy work and claiming you have made it. (This
is known as plagiarism and is completely different than copyright infringement,
but laws concerning it come under the section of copyright law in some countries)

The penalties for these "copyright infringement" offences depend on the seriousness of
the offences:
 • before a magistrates' Court, the penalties for distributing unauthorised files are a
maximum fine of £5,000 ($9,202) and/or six months imprisonment;
• in the Crown Court, the penalties for distributing unauthorised files are an
unlimited fine and/or up to 10 years imprisonment.

Also note s24 Copyright and Related Rights Regulations 2003 which creates a range of
offences relating to the distribution of any device, product or component which is
primarily designed, produced, or adapted for the purpose of enabling or facilitating the
circumvention of effective technological measures. When this is for non-commercial
purposes, it requires there to be a measurable effect on the rights holder's business.

[edit] See also

For a substantial discussion of copyright infringement in the domain of computer
programs, see copyright infringement of software.

• Copyright
• United States copyright law
• United States civil copyright enforcement procedure
• United States Online Copyright Infringement Liability Limitation Act
• Intellectual Property
• Copyleft
• Bootleg recording
• P2P legal controversy
• IFPI (International Federation of Phonogram and Videogram Producers}
• Home taping is killing music
• Warez
• Plagiarism
• Counterfeit
• DADVSI (French law on copyright, voted by the National Assembly in March
2006; implementation of the 2001 EU Copyright directive, with some
modifications)
• You can click, but you can't hide
• Copyright commandeering

[edit] Notes
1. ^ See Berne Copyright Convention, 1886: "Pirated works may be seized on importation
into those countries of the Union where the original work enjoys legal protection." (Art.
12).
2. ^ In Dowling v. United States (1985), the United States Court of Appeals for the Ninth
Circuit held that copyright infringement does not "easily equate" to theft and
unauthorized copies are not stolen property.
 3. ^ In this document, the MPAA claims the annual cost of copyright infringement to the
US entertainment industry is $3.5 billion, but later assigns the same value to the global
cost estimated in 2002.

[edit] External links

• Music-law is a source of knowledge, advice and free information about the music
industry, including music copyright
• Movie and Record Industry Piracy Figures Incendiary, But Not Fact. - June 2006
MP3 Newswire article challenges inflated coyright infringement claims by media
companies
• A 2000 Salon.com article by Courtney Love addressing copyright infringement of
music
• A 2003 article on CD Piracy in China from the music webzine www.CLUAS.com
• A 2001 reprint of two speeches given by Thomas Macaulay in Parliament in 1841,
when the issue of copyright was being hammered out.
• An example of a MPAA lawsuit letter
• An economic analysis of unauthorised copying of movies from the Yale Economic
Review
• An article for students explaining the difference between plagiarism and copyright
infringement
• Automated Copyright Infringement Detection
• A parody of RIAA anti-piracy advertising
• Willful Infringement: Mickey and Me The story of Jed Horovitz and his legal
dispute with the Disney Corporation
• http://www.penetrationtest.com/whistle.php - Whistleblower - Scan your NNTP
news provider for the presence of unauthorised copies of music, movies or
software
• US Copyright Office

Retrieved from "http://en.wikipedia.org/wiki/Copyright_infringement"

Categories: Articles to be split | Articles to be merged since September 2006 | Copyright

law | Crimes | Tort law | Copyright infringement

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