Copyright infringement of software
Encyclopedia
Copyright infringement of software=
The copyright infringement
of software (often referred to as software piracy) refers to several practices which involve the unauthorized copying of computer software. Copyright infringement of this kind varies globally. Most countries have copyright laws which apply to software, but the degree of enforcement varies.
It is a copyright violation to download, upload or otherwise distribute copyrighted material through the internet without authorization.
Most countries extend copyright protections to software. Even the oldest legacy computer systems used today will not have their copyright expire until 2030. In the United States, copyright term has been extended many times over 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.
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..
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.
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 access 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 protection mechanisms that have malfunctioned, have caused the software to become inoperable or which are no longer supported by their manufacturers.
contains a Substantial similarity
requirement to determine whether the work falls under the Fair use
clause.
Evaluation of alleged software 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) 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.
and IDC
claim that losses from software piracy in 2009 have exceeded $51 billion.
In addition, it has been claimed that reducing piracy rates would provide significant economical benefits:
According to a BSA/IDC studies, the highest piracy rate comes from Armenia, with piracy rate of 93%. China and India are at No. 17 and No. 41 respectively , with 82% and 69% of recorded Software Piracy rates. The lowest piracy rate, according to survey, is observed in USA, at 20%.
However, the methodology of these studies have been heavily criticized. Estimated losses have been found to be heavily exaggerated or outright fabricated.
In addition to misrepresenting data, the BSA and other like associations have been found to rely on the perpetuation of myths, tropes, and moral pedagogy in lieu of data.
executive, stated that "If they're going to pirate somebody, we want it to be us rather than somebody else." He also added that "We understand that in the long run the fundamental asset is the installed base of people who are using our products. What you hope to do over time is convert them to licensing the software." In a different case, Microsoft has admitted that piracy of its Windows operating system has helped give it huge market share in China that will boost its revenues when these users "go legit." Bill Gates said, "It's easier for our software to compete with Linux
when there's piracy than when there's not." He has also said in reference to China:
In this way, copyright infringement acts as a market penetration tool to set standards and create dependency on the software.
Software copyright holders have found that in many conditions they see higher profits because of piracy. Authors that have distributed their work online with open licensing universally agreed that they achieved much greater success, profit, and impact from their work because of piracy.
and Europe
. Critics in developing countries see this as an indirect technology transfer tax on their country, preventing technological advancement. This is the leading reason developing countries refuse to accept or respect copyright laws. This idea is often applied to patent
laws as well. 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."
The debate about software piracy acceptance in developing countries still continues. In 2011, the Business Software Alliance
announces that 83 percent of software deployed on PCs in Africa
has been pirated (excluding South Africa
).
licenses (most notably GPL) substantially rely on existing copyright law. It is not possible to enforce GPL other than within the framework of existing copyright law. As GPL being strongly associated with word Copyleft
, there is certain confusion about GPL and copyright, but despite somewhat confusing wording, copyleft is indeed one (unprivative) of copyright licensing schemas.
The copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
of software (often referred to as software piracy) refers to several practices which involve the unauthorized copying of computer software. Copyright infringement of this kind varies globally. Most countries have copyright laws which apply to software, but the degree of enforcement varies.
It is a copyright violation to download, upload or otherwise distribute copyrighted material through the internet without authorization.
Existing and proposed laws
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..
Proposed laws such as the Stop Online Piracy Act
Stop Online Piracy Act
The Stop Online Piracy Act , also known as H.R.3261, is a bill that was introduced to the United States House of Representatives on October 26, 2011, by Representative Lamar Smith and a bipartisan group of 12 initial co-sponsors. The bill expands the ability of U.S...
broaden the definition of "willful infringement", and introduce felony charges for unauthorized media streaming
Main
The Main is a river in Germany, with a length of the most significant right tributary of the Rhine.-Geography:...
. 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.
Title I of the US
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
DMCA, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act
WIPO Copyright and Performances and Phonograms Treaties Implementation Act
The WIPO Copyright and Performances and Phonograms Treaties Implementation Act, is a part of the Digital Millennium Copyright Act , a 1998 U.S. law...
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
Dongle
A software protection dongle is a small piece of hardware that plugs into an electrical connector on a computer and serves as an electronic "key" for a piece of software; the program will only run when the dongle is plugged in...
or password access device installed in the software any attempt to bypass such a copy protection
Copy protection
Copy protection, also known as content protection, copy obstruction, copy prevention and copy restriction, refer to techniques used for preventing the reproduction of software, films, music, and other media, usually for copyright reasons.- Terminology :Media corporations have always used the term...
scheme may be actionable
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
— 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 software to become inoperable or which are no longer supported by their manufacturers.
Limitations
Copyright does not protect the technical form nor R&D of an original work. CopyrightCopyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
contains a Substantial similarity
Substantial similarity
Substantial similarity is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement...
requirement to determine whether the work falls under the Fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
clause.
Evaluation of alleged software 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
Abstraction-Filtration-Comparison test
The Abstraction-Filtration-Comparison test is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied...
(AFC Test) 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.
Claims of economic harm
The BSABusiness Software Alliance
The Business Software Alliance is a trade group established in 1988 and representing a number of the world's largest software makers and is a member of the International Intellectual Property Alliance...
and IDC
International Data Corporation
International Data Corporation is a market research and analysis firm specializing in information technology, telecommunications and consumer technology. IDC is a subsidiary of International Data Group...
claim that losses from software piracy in 2009 have exceeded $51 billion.
In addition, it has been claimed that reducing piracy rates would provide significant economical benefits:
According to a BSA/IDC studies, the highest piracy rate comes from Armenia, with piracy rate of 93%. China and India are at No. 17 and No. 41 respectively , with 82% and 69% of recorded Software Piracy rates. The lowest piracy rate, according to survey, is observed in USA, at 20%.
However, the methodology of these studies have been heavily criticized. Estimated losses have been found to be heavily exaggerated or outright fabricated.
In addition to misrepresenting data, the BSA and other like associations have been found to rely on the perpetuation of myths, tropes, and moral pedagogy in lieu of data.
Claims of economic advantage
Jeff Raikes, a MicrosoftMicrosoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
executive, stated that "If they're going to pirate somebody, we want it to be us rather than somebody else." He also added that "We understand that in the long run the fundamental asset is the installed base of people who are using our products. What you hope to do over time is convert them to licensing the software." In a different case, Microsoft has admitted that piracy of its Windows operating system has helped give it huge market share in China that will boost its revenues when these users "go legit." Bill Gates said, "It's easier for our software to compete with Linux
Linux
Linux is a Unix-like computer operating system assembled under the model of free and open source software development and distribution. The defining component of any Linux system is the Linux kernel, an operating system kernel first released October 5, 1991 by Linus Torvalds...
when there's piracy than when there's not." He has also said in reference to China:
In this way, copyright infringement acts as a market penetration tool to set standards and create dependency on the software.
Software copyright holders have found that in many conditions they see higher profits because of piracy. Authors that have distributed their work online with open licensing universally agreed that they achieved much greater success, profit, and impact from their work because of piracy.
Developing countries
Most commercially exploited proprietary software is developed in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
. Critics in developing countries see this as an indirect technology transfer tax on their country, preventing technological advancement. This is the leading reason developing countries refuse to accept or respect copyright laws. This idea is often applied to patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
laws as well. Traian Băsescu
Traian Basescu
Traian Băsescu is the current President of Romania. After serving as the mayor of Bucharest from June 2000 until December 2004, he was elected president in the Romanian Presidential Elections of 2004 and inaugurated on December 20, 2004...
, the president of Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
, stated that "piracy helped the young generation discover computers. It set off the development of the IT industry in Romania."
The debate about software piracy acceptance in developing countries still continues. In 2011, the Business Software Alliance
Business Software Alliance
The Business Software Alliance is a trade group established in 1988 and representing a number of the world's largest software makers and is a member of the International Intellectual Property Alliance...
announces that 83 percent of software deployed on PCs in Africa
Africa
Africa is the world's second largest and second most populous continent, after Asia. At about 30.2 million km² including adjacent islands, it covers 6% of the Earth's total surface area and 20.4% of the total land area...
has been pirated (excluding South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
).
Copyright and free software
Certain free softwareFree software
Free software, software libre or libre software is software that can be used, studied, and modified without restriction, and which can be copied and redistributed in modified or unmodified form either without restriction, or with restrictions that only ensure that further recipients can also do...
licenses (most notably GPL) substantially rely on existing copyright law. It is not possible to enforce GPL other than within the framework of existing copyright law. As GPL being strongly associated with word Copyleft
Copyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
, there is certain confusion about GPL and copyright, but despite somewhat confusing wording, copyleft is indeed one (unprivative) of copyright licensing schemas.
Anti-copyright infringement organizations
- Business Software AllianceBusiness Software AllianceThe Business Software Alliance is a trade group established in 1988 and representing a number of the world's largest software makers and is a member of the International Intellectual Property Alliance...
(BSA) - Entertainment Software AssociationEntertainment Software AssociationThe Entertainment Software Association is the trade association of the video game industry in the United States. It was formed in April 1994 as the Interactive Digital Software Association and renamed on July 16, 2003...
(ESA) - Canadian Alliance Against Software TheftCanadian Alliance Against Software TheftThe Canadian Alliance Against Software Theft is a Canadian trade group affiliated with the Business Software Alliance. Its mission statement is to "reduce software piracy in Canada through education, public policy and enforcement." The CAAST was established in 1990....
(CAAST) - Federation Against Software TheftFederation Against Software TheftThe Federation Against Software Theft is a not-for-profit organisation, formed in 1984 with the aim of eliminating copyright infringement of software in the UK. FAST was the world's first Anti-piracy organisation to work to protect the copyrights of software publishers...
(FAST) - International Intellectual Property AllianceInternational Intellectual Property AllianceThe International Intellectual Property Alliance , formed in 1984, is a private sector coalition of seven trade associations representing U.S...
(IIPA)
See also
- AbandonwareAbandonwareAbandonware are discontinued products for which no product support is available, or whose copyright ownership may be unclear for various reasons...
- Anti-copyrightAnti-copyrightAnti-copyright refers to the complete or partial opposition to prevalent copyright laws. Copyright is known as the owner's right for copies to be only made by the owner or with his/her authorization in form of a license....
- Australian copyright lawAustralian copyright lawThe copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Australian Copyright Act 1968 , which applies the national law throughout Australia...
- Computer Associates Int. Inc. v. Altai Inc.Computer Associates Int. Inc. v. Altai Inc.Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process...
- CopyleftCopyleftCopyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...
- File sharingFile sharingFile sharing is the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia , documents, or electronic books. It may be implemented through a variety of ways...
- Jacobsen v. KatzerJacobsen v. KatzerJacobsen v. Katzer was a lawsuit between Robert Jacobsen and Matthew Katzer , filed March 13, 2006 in the United States District Court for the Northern District of California...
- Open Letter to HobbyistsOpen Letter to HobbyistsThe Open Letter to Hobbyists was an open letter written by Bill Gates, the co-founder of Microsoft, to early personal computer hobbyists, in which Gates expresses dismay at the rampant copyright infringement taking place in the hobbyist community, particularly with regard to his company's...
- Product activationProduct activationProduct activation is a license validation procedure required by some proprietary computer software programs. In one form, product activation refers to a method invented by Ric Richardson and patented by Uniloc where a software application hashes hardware serial numbers and an ID number specific...
- Software copyrightSoftware copyrightSoftware copyright is the extension of copyright law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software...
- WarezWarezWarez refers primarily to copyrighted works distributed without fees or royalties, and may be traded, in general violation of copyright law. The term generally refers to unauthorized releases by organized groups, as opposed to file sharing between friends or large groups of people with similar...
- Windows Genuine AdvantageWindows Genuine AdvantageWindows Genuine Advantage is an anti-piracy system created by Microsoft that enforces online validation of the licensing of several recent Microsoft Windows operating systems when accessing several services, such as Windows Update, and downloading Windows components from the Microsoft Download...