Copyright infringement

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]

Methods of copyright infringement

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. 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.^{[citation needed]}

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.

Illegally using text content, a form of copyright infringement is very common on the world wide web. Normally the text is copied from one site to another without consent of the author. The height of check is probably the article Copyrights and Wrongs by Roberta Beach Jacobson, in which she explains the legal position. This article can be found on hundreds of Websites (Google finds over 10 pages^{[citation needed]}), on most of them posted illegally, according to the author.^{[citation needed]}

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.

Justification

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.
The free spread of media stimulates the industry both by creating new artists and exposing new people to current artists.^{[citation needed]}

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.

Sample Troll

Recently, certain companies have been purchasing portfolios of old music copyrights for the express purpose of enforcing those rights when a musician samples said old music for a new composition. These companies have been referred to by the pejorative term "Sample Troll". Their role in copyrights is seen to be analagous to the role of so called patent trolls in the patent arena. [1]

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.

British law

In British 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.

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.

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 copyright 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

^ 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).
^ 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. Copyright infringement is not a property crime; in fact, copyright infringement is only rarely handled as a criminal matter.
^ 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.

[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. Copyright infringement is not a property crime; in fact, copyright infringement is only rarely handled as a criminal matter.

[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.

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