Copyright infringement of software

Categories: Copyright law

The copyright infringement of software, also called software piracy, refers to several practices when done without the permission of the copyright holder:

  • Creating a copy and selling it. This is the act most people refer to as software piracy. This is copyright infringement in most countries and is unlikely to be fair use or fair dealing if the work remains commercially available. In some countries the laws may allow the selling of a version modified for use by blind people, students (for non-educational product) or similar. Differences in legislation may also make the copyright invalid in some jurisdictions, but not the others.
  • Creating a copy and giving it to someone else. Copyright infringement in most jurisdictions. Not infringing under specific circumstances such as fair use and fair dealing.
  • Creating a copy to serve as a backup. Seen as a fundamental right of the software-buyer in some countries, e.g., Germany. It can be infringement, depending on the laws and the case law interpretations of those laws, currently undergoing changes in many countries. In the US, legal action was taken against companies which made backup copies while repairing computers (see MAI Systems Corp. v. Peak Computer, Inc. (1993)) and as a result, US law was changed to make it clear that this is not copyright infringement.
  • Renting the original software. Software licenses often try to restrict the usual right of a purchaser of a copyrighted work to let others borrow the work. In some jurisdictions such the validity restrictions are disputed, but some require permission from the copyright holder to allow renting the software.
  • Reselling the original software. Licenses often say that the buyer does not buy the software but instead pays for the right to use the software. In the US, the first-sale doctrine, Softman v. Adobe [1] and Novell, Inc. v. CPU Distrib., Inc. ruled that software sales are purchases, not licenses, and resale, including unbundling, is lawful regardless of a contractual prohibition. The reasoning in Softman v. Adobe suggests that resale of student licensed versions, provided they are accurately described as such, is also not infringing.

Copyright infringement of software is extremely common in Mexico, China, Russia, Brazil, and several other parts of the world where it is legal. However it is illegal in mostly English-speaking nations.


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Software licenses

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 prevents subsequent 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 license may not be done by the person who removed the original shrink wrap (or opened a sealed envelope or some such variation), the click-through license is preferred because it will bind all subsequent installations.

Although the question has not 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 arcades.

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Unauthorized copying as being the ethically correct choice

Some contend that any license not allowing a person to share with his neighbor to be ethically wrong. Still others, while laying less stress to the ethics of copyright restrictions in and of themselves, nevertheless see it as a dangerous slippery slope. Other arguments for unauthorized copying being the ethically correct choice can include having bought software, but either losing the original box, the software being deleted from your hard drive, or both, and you want to re-use it again without having to re buy the software.

Also, some people, particularly those who live in poverty in the developed world or who live in third world countries, sometimes argue that it is OK, or at least morally ambiguous, to copy software which they could not have otherwise afforded, especially if copyright infringement serves some other public purpose. For example, a community center might host a LAN game using multiple copies of software when only one is licensed, and the organizer may feel that the good of "keeping the kids off the street" outweighs the bad of using multiple copies of the software when not licesnsed to do so.

Another example might be a non-profit foundation that installs an unlicensed copy of Windows when it refurbishes old computers to be given to the poor. They recognize that a retail boxed licensed version of Windows can cost more than a new computer, and both of them are outside the budget for their organization. For various reasons, Microsoft created Microsoft Authorized Refurbisher Program to provide legal and reasonable licensing for these organizations.

https://www.techsoup.org/mar/default.asp http://www.microsoft.com/mscorp/citizenship/giving/programs/it_build.asp

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Existing and proposed laws

To many of these attempts at circumventing these end user license 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.

In most developed countries, the term of a copyright greatly exceeds any useful life a program may have. The oldest legacy computer systems used today are still less than 40 years old. The copyright on them will not expire in the United States and Europe until about 2030. Changes in computer hardware, operating systems, network environments and user expectations usually make programs obsolete much faster than in 70 years (current copyright length).

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 shut down unauthorized software copiers 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 access device installed in the software any attempt to bypass such a copy prevention 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.

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.

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Preventing copyright infringement

Some approaches used for prevention of software copyright infringement:

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The effects of copyright infringement on our culture

Piracy has changed the landscape of our digital culture drastically. Peer to peer (P2P) file sharing technology and IRC have allowed for the easy spread of not only pirated software, but also massive amounts of information. In his book Free Culture, Lawrence Lessig, a prominent figure in science and technology studies, mentions that "the Internet has unleashed an extraordinary possibility for many to participate in the process of building and cultivating a culture that reaches far beyond local boundaries. That power has changed the marketplace for making and cultivating culture generally, and that change in turn threatens established content industries." Thus, on the surface software piracy looks like a simple crime of stealing another person's or company's information or material, when in the regard of software piracy is never theft, but copyright infringement or piracy; however, piracy has in a sense opened up once closed doors and has allowed for the easy spread and access of once closed software and code. Hence, piracy is not merely about the illegal sharing of software or protection of personal property, there is more at stake when it comes to the freedom to share all information without restrictions. In his book, Lessig argues that the laws imposed through the bidding of big industry have "massively increased the effective regulation of creativity in America." The law, in essence, is restricting the spread of information, technology, and culture. Thus, when addressing the "problem" of software piracy one cannot just see it in black or white, right or wrong. Software piracy and piracy in general are complicated and multifaceted topics which affect almost every aspect of our lives. What we decide to do about piracy as a society will determine our own cultural development or lack thereof in the future.

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Objections to the term piracy

Some groups including the Free Software Foundation object to the term "software piracy." Their objection stems from the idea that to label one as a pirate creates a prejudice that is used to gain political ground. Evidence of this can be seen in the Free Software Foundation's list of confusing words [2].

Publishers often refer to prohibited copying as "piracy." In this way, they imply that illegal copying is ethically equivalent to attacking ships on the high seas, kidnapping and murdering the people on them.

If you don't believe that illegal copying is just like kidnapping and murder, you might prefer not to use the word "piracy" to describe it. Neutral terms such as "prohibited copying" or "unauthorized copying" are available for use instead. Some of us might even prefer to use a positive term such as "sharing information with your neighbor."

Despite the murdering and kidnapping that has been undertaken by real-life pirates, pirates can have a romantic Long John Silver image. This could actually attract some people to participate in software copyright infringement.

One organization that campaigns against software copyright infringement refers to the practice as software theft. As software copyright infringement does not usually involve a deliberate attempt to deprive the software owner of the software, this term is very misleading. See Federation Against Software Theft.

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References

  1. International Journal of Research in Marketing, December 2003 (Volume 20, No. 4), "How many pirates should a software firm tolerate?"
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See also

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External links