Internet piracy: Wikis

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The Cathach of St. Columba, a seventh century book of psalms. Tradition cited it as the book whose illicit transcription by Saint Columba in 560 AD led to the overturn of an Irish copyright ruling by force of arms.[1]
An advertisement for copyright and patent preparation services from 1906, when copyright registration formalities were still required in the US.

Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.

For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : "Its being Printed again and again, by Pyrates"[2]). The practice of labeling the act of infringement as "piracy" actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, 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. Those who violated the charter were labeled pirates as early as 1603.[3]

The legal basis for this usage dates from the same era, and has been consistently applied until the present time.[4][5] Critics of the use of the term "piracy" to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity,[6] though courts often hold that under law the two terms are interchangeable.[7]

Contents

Common examples

Musical works

Duplication of a CD or other recorded media containing copyright material without permission of the copyright holder may be a form of copyright infringement, dependent on local laws.

Unauthorized downloading of copyrighted material and sharing of recorded music over the Internet, often in the form of MP3 files, is another form of infringement, even after the demise of Napster and a series of infringement suits brought by the RIAA.

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 covered by copyright despite their lack of formal release, and their distribution is still against the law.[citation needed]

Sampling of copyrighted music for use in other works without permission is also a form of copyright infringement. Some companies exploit this fact by attempting to sue the creators of the new work for copyright infringement.

TV and film

Promotional screener DVDs distributed by movie studios (often for consideration for awards) are a common source of unauthorized 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 "camming"), although such copies are often of lesser quality than DVD. Some copyright owners have responded to infringement by displaying warning notices on commercially sold DVDs; these warnings do not always give a fair picture of the purchaser's legal rights, which in the US generally include the rights to sell, exchange, rent or lend a purchased DVD.

Text

The unauthorized use of text content can be a form of copyright infringement. It is common on the world wide web for text to be copied from one site to another without consent of the author. Roberta Beach Jacobson criticizes the misappropriation of writers' work by websites in her article Copyrights and Wrongs. This article was added to articlestree.com[8] on November 27, 2001; ironically, it has since been copied to hundreds of websites,[9] many of them claiming copyright over the work or charging money to access it.

Worldwide collaboration to fight copyright infringement

Servers enabling internet-based copyright infringement are often based in countries with less strict copyright laws or enforcement history.[10][11][12] BPI spokesman Matt Phillips has said the lax copyright laws in Eastern Europe and the post-Soviet countries made it hard to crack down on copyright infringement there.[13] Copyright holders are collaborating to fight this activity, through lobbying governments and other means.

Legality

A short film included on many DVDs equates copyright infringement with theft.
Two "strikingly similar" plush toys; infringement established. Appendix page 1 Ty, Inc. v. GMA Accessories, Inc. 132 F.3d 1167, 1174 (7th Cir. 1997).

The most important international treaty concerning copyright infringement is the Berne Convention of 1886 as amended. The United States became the 80th signatory of the treaty with the Berne Convention Implementation Act of 1988, over 100 years after the passage of the original treaty in Paris. The US signed the treaty with one important exception: it did not accept the recognition of moral rights in article 6 of the Berne Convention. Moral rights enable a copyright holder to "object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."[16] The US expressly stated in the Implementation Act that no other right (i.e. the 1st Amendment) shall be impacted by acceptance of the Convention. Literary criticism and parody are important parts of the US infringement defense of fair use. Consequently, the US provides less protection from infringement of moral rights than other Berne signatories.

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Infringement suit in U.S. law

U.S. law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original.[17] Assuming the plaintiff proves ownership of a valid copyright, the holder must then establish both actual copying and improper appropriation of the work. The burden lies with the plaintiff to establish these three elements in what is known as the prima facie case for infringement.

Element Description
Ownership of a valid copyright A plaintiff establishes ownership by authorship (by the plaintiff itself or by one who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) fixed in a tangible medium (e.g. a book or musical recording). Registration is not required for copyright itself, but in most cases is a jurisdictional requirement to bring the suit. Registration is also useful because it gives rise to the presumption of a valid copyright, and eliminates the innocent infringement defense, and (if timely made) it allows the plaintiff to elect statutory damages, and to be eligible for a possible award of attorney fees.

Works that are not sufficiently original, or which constitute facts, a method or process cannot enjoy copy protection.[18]. U.S. Courts do not recognize the "sweat of the brow" doctrine, which originally allowed protection for those who labored to collect and organize facts. To combat this, business which assemble databases of information have relied on contract law where copyright law offers no protection.[19] For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.[20]

Copyright protects the fixed expression of ideas, but not the ideas themselves.[21] (Ideas are protected by patents). Nevertheless, an expression must exist in a fixed tangible medium.[22] A movie script writer who discusses a plot idea which has not yet been written would not be protected if another heard his idea and wrote a screenplay himself. Whether RAM constitutes a "fixed medium" is a contentious issue in copyright litigation because of the transitory nature of RAM.[23]

Actual copying A plaintiff establishes actual copying with direct or indirect evidence. Direct evidence is satisfied either by a defendant's admission to copying or the testimony of witnesses who observed the defendant in the act. More commonly, a plaintiff relies on circumstantial or indirect evidence. A court will infer copying by a showing of a "striking similarity" between the copyrighted work and the alleged copy, along with a showing of both access and use of that access.[24] A plaintiff may establish access by proof of distribution over a large geographical area, or by eyewitness testimony that the defendant owned a copy of the protected work. Access alone is not sufficient to establish infringement. The plaintiff must show a similarity between the two works, and the degree of similarity will affect the probability that illicit copying in fact occurred in the court's eyes.[25] Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the US Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.[26]
Misappropriation A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague."[27] Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method.

The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not.[28] The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists.[29] The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.[30]

Modern courts may sometimes use both methods in its analysis of misappropriation.[31] In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.[32]

Defenses to infringement

A defendant in an infringement action may rebut the presumption of copying by a showing of independent creation. It is possible for an author to create a work independently while bearing similarities to another. If access is not established, there is no copying, even if there is a striking similarity between the two works.[33] For this reason, corporations will destroy or return unsolicited mailings from authors as a policy.[34]

The legal doctrine of de minimis non curat lex, "the law does not care about trivial things", provides a de minimis copying defense against infringement. When the plaintiff establishes only a trivial use of the copyrighted work by the defendant, there is no infringement. For example, an out-of-focus copyrighted picture appearing only momentarily in the background of a commercial is not infringement.[35] The Beastie Boys successfully used this defense in a lawsuit over the use of three musical notes in the song "Pass the Mic."[36] The Beastie Boys had obtained a license to use the recording, but the rights to the song itself were retained by the original composer. The court held that use of three notes was not a sufficient use and amounted to de minimis copying. However, the Sixth Circuit has held that the de minimis defense is not available for the sampling of sound recordings because of their intrinsic value in saving the sampler time and costs in hiring musicians to perform the music however short.[37]

The two most important defenses to copyright infringement are the first sale doctrine and fair use.

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.

Fair use is an affirmative defense, but its application will vary greatly depending on the facts and circumstances of the case. Courts apply a four part balancing test examining the scope of infringement, the effect on the copyright owner's rights (e.g. his or her ability to sell the work), the amount of the work copied, and the purpose of the infringement. Courts have held that a non-commercial use is not fair use when it has a substantial market effect. In cases with a small-scale impact, courts are more receptive to arguments regarding the effect on the copyright owner's market or potential market. Fair use is used mainly in the United States. Other common law jurisdictions have the more rigidly defined defence of fair dealing, while civil law jurisdictions also have similar defences.

Amendments to the 1976 Copyright Act

With the passage of the No Electronic Theft Act (NET Act), US copyright law was changed to allow for the civil and criminal prosecution of persons allegedly engaged in copying of copyrighted works without permission that did not result in personal financial gain; historically, the criminal copyright law required 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, under this US law, members of software piracy groups could also be prosecuted for participation in a criminal enterprise.

British law

The Copyright, Designs and Patents Act 1988, as amended by the Copyright and Trade Marks (Offences and Enforcement) Act 2002,[38] currently protects copyrighted materials. People who distribute and download copyrighted recordings without permission are liable to face civil actions for damages and penalties. As in the United States, it is possible to identify the IP addresses and the ISPs were obliged to disclose the name and address of the owner of each such internet account.

The Copyright and Related Rights Regulations 2003 amended the CDPA to provide an additional right of performers to require consent before making copies of their performances available to the public by electronic transmission.[39]

A survey carried out in 2006 for the National Consumer Council indicated that over half of British adults infringe copyright law by copying and ripping music CDs, with 59% stating a belief that copying for personal use is legal.[40] However, ripping music from CDs to another format, such as MP3, is currently illegal. In 2006 The Institute for Public Policy Research called for a "public right to copy".[41] In January 2008 the government proposed changes to copyright law that would legalise copying for personal use.[42]

British Copyright law has been criticised as needlessly strict and out of date by consumer advocacy groups. In a 2009 study Consumers International found it the least consumer-friendly from all 16 countries whose laws they examined, due to the aforementioned illegality of copying purely for personal benefit.[43]

Criminal offences

Acts that may be criminal offences in the UK include:

  • Making copies for the purpose of selling or hiring them to others[44]
  • Importing infringing copies (except for personal use)[45]
  • Offering for sale or hire, publicly displaying or otherwise distributing infringing copies in the course of a business[46]
  • Distributing a large enough number of copies to have a noticeable effect on the business of the copyright owner[47]
  • Making or possessing equipment for the purposes of making infringing copies in the course of a business[48]
  • Publicly performing a work in knowledge that the performance is unauthorised[49]
  • Communicating copies or infringing the right to "make available" copies to the public (either in the course of a business, or to an extent that has a noticeable effect on the business of the copyright owner)[50]
  • Manufacturing commercially, importing for non-personal use, possessing in the course of a business, or distributing to an extent that has a noticeable effect on the business of the copyright holder, a device primarily designed for circumventing a technological copyright protection measure.[51]

The penalties for these copyright infringement offences depend on the seriousness of the offences, and may include:

  • Before a magistrates' Court, the penalties for distributing unauthorised files are a maximum fine of £5,000 and/or six months imprisonment;
  • On indictment (in the Crown Court) some offences may attract an unlimited fine and up to 10 years imprisonment. [52]

Canadian law

Sharing copied music is legal in some countries, such as Canada (downloading only),[53][54], provided that the songs are not sold.

Comparison to theft

Copyright infringement is often equated with theft, for instance in the title of the No Electronic Theft Act of 1997, but differs in certain respects.

Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court case Dowling v. United States (1985) that bootleg phonorecords did not (for the purpose of the case) constitute stolen property, and writing:

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 infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

Dowling v. United States473 U.S. 207, pp. 217–218

The key distinction generally drawn, as indicated above, is that while copyright infringement may (or may not) cause economic loss to the copyright holder, as theft does, it does not appropriate a physical object, nor deprive the copyright holder of the use of the copyright. That information can be replicated without destroying an original is an old observation,[55] and a cornerstone of intellectual property law. In economic terms, information is not a rival good; this has led some to argue that it is very different in character, and that laws for physical property and intellectual property should be very different.[56]

A British Government's report, Digital Britain, characterizes online piracy as a form of theft: "Unlawful downloading or uploading, whether via peer-to-peer sites or other means, is effectively a civil form of theft."[57]

See also

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

References

  1. ^ "The Cathach / The Psalter of St. Columba". Royal Irish Academy. 2008-01-30. http://www.ria.ie/library+catalogue/cathach.html. Retrieved 2008-06-09. 
  2. ^ Oxford English Dictionary
  3. ^ T. Dekker Wonderfull Yeare 1603 University of Oregon
  4. ^ 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).
  5. ^ See also Massachusetts Circuit Court Folsom v. Marsh, 1841: "If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto."
  6. ^ Some Confusing or Loaded Words and Phrases that are Worth Avoiding, Free Software Foundation
  7. ^ For example, see Dowling v. United States, 473 U.S. 207 (1985), et al.
  8. ^ Jacobson, Roberta Beach (2001-11-27). "Copyrights and Wrongs". www.articlestree.com. http://www.articlestree.com/copywriting/copyrights-and-wrongs-tx197204.html. Retrieved 2007-04-07. 
  9. ^ "Results 1 - 10 of about 371 for "Roberta Beach Jacobson" "Copyrights and Wrongs"". www.google.com. http://www.google.com/search?q=%22Roberta+Beach+Jacobson%22+%22Copyrights+and+Wrongs%22. Retrieved 2007-04-07. 
  10. ^ Isenberg, Doug (2002-09-04). "Is this the way to fight copyright infringement?". News.com. http://news.com.com/2010-1071-956418.html. Retrieved 2007-02-05. 
  11. ^ "'Korean Wave' piracy hits music industry". BBC. 2001-11-09. http://news.bbc.co.uk/1/hi/business/1646903.stm. Retrieved 2007-02-05. 
  12. ^ "Pakistan - copyright piracy hub". BBC. 2005-05-03. http://news.bbc.co.uk/1/hi/world/south_asia/4495679.stm. Retrieved 2007-02-05. 
  13. ^ "Music piracy in UK soars". BBC. 2002-12-18. http://news.bbc.co.uk/1/hi/entertainment/2588013.stm. Retrieved 2007-02-05. 
  14. ^ Natali Del Conte (2006-11-28). "Russia Agrees To US Request To Shut Down AllofMP3.com". TechCrunch. http://www.techcrunch.com/2006/11/28/russia-agrees-to-us-request-to-shut-down-allofmp3com/. Retrieved 2007-02-05. 
  15. ^ IPTV Guy. "Chinese Government promises to help fight online piracy". Web TV Wire. http://www.webtvwire.com/chinese-government-promises-to-help-fight-online-piracy/. Retrieved 2007-02-05. 
  16. ^ see Berne Convention Article 6, bis
  17. ^ see Feist v. Rural Telephone 499 U.S. 340, 361 (1991)
  18. ^ see Feist v. Rural Telephone 499 U.S. 340 (1991) (holding that an arrangement of telephone numbers in alphabetical order was not sufficiently original to garner copyright protection)
  19. ^ see e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (holding that a software license agreement was not preempted by copyright law and could legally restrain the purchaser of a database from copying under contract law).
  20. ^ Feist at 346.
  21. ^ see Baker v. Selden, 101 U.S. 99 (1880)
  22. ^ see Midway Manufacturing Co. v. Artic International, Inc. 574 F.Supp. 999, aff'd, 704 F.2d 1009 (7th Cir 1982) (holding the computer ROM of Pac Man to be a sufficient fixation even though the game changes each time played.)
  23. ^ see Mai Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993) (program in RAM memory a fixation).
  24. ^ see Ty, Inc. v. GMA Accessories, Inc. 132 F.3d 1167 (7th Cir. 1997).
  25. ^ Id. 132 F.3d 1167
  26. ^ see Feist at 361
  27. ^ Judge Learned Hand, Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2nd Cir. 1960).
  28. ^ see Nichols v. Universal Pictures Corp., 45 F.2d 119 (2nd Cir. 1930)
  29. ^ see Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970).
  30. ^ see Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (holding that a series of McDonald's commercials portraying "McDonaldland" had used as its basis the "H.R. Pufnstuf" television show. Corresponding characters to each, while displaying marked differences, taken altogether demonstrated that McDonald's had captured the total concept and feel of the show and had thus infringed).
  31. ^ see Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132, 140 (2nd Cir. 1998).
  32. ^ see Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, (2nd Cir. 1992) (where court chose the subtraction method for two computer programs whose total concept were the same. Individual copied elements of the program were non-protectible material because they constituted a process or idea in the program, their utilitarian aspects barring copyright protection; no infringement found).
  33. ^ see Selle v. Gibb 741 F.2d 896 (7th Cir. 1984) (court held no infringement in The Bee Gees' song, "How Deep is Your Love" despite similarity to the melody of an unreleased song from an unknown composer).
  34. ^ see Takeall v. Pepsico, Inc., 14 F.3d 596 (4th Cir. 1993)(unpublished opinion; brief of appellee page 9) (Ventriloquist performer who coined phrase "You got the right one, uh-huh" sued PepsiCo over similar phrase in Ray Charles commercials. Performer had sent an unsolicited promotional package to Pepsi, which was not forwarded to marketing executives).
  35. ^ Gordon v. Nextel Communications 345 F.3d 922 (6th Cir.).
  36. ^ Newton v. Diamond 388 F.3d 1189 (9th Cir. 2004)
  37. ^ Bridgeport Music, Inc. v. Dimension Films 410 F.3d 792, 802 (6th Cir. 2005)
  38. ^ Office of Public Sector Information
  39. ^ Copyright and Related Rights Regulations 2003, §7
  40. ^ "Shake-up 'absurd' copyright laws, says NCC". National Consumer Council. May 11, 2006. http://www.ncc.org.uk/news_press/pr.php?recordID=271. 
  41. ^ "Copying own CDs 'should be legal'". BBC News. October 29, 2006. http://news.bbc.co.uk/1/hi/uk/6095612.stm. 
  42. ^ "Copying CDs could be made legal". BBC News. January 8, 2008. http://news.bbc.co.uk/1/hi/entertainment/7176538.stm. 
  43. ^ "UK 'has the worst copyright laws'". BBC News Online. 15 April 2009. http://news.bbc.co.uk/1/hi/business/8000876.stm. 
  44. ^ Copyright, Designs and Patents Act 1988, §107 (1) (a)
  45. ^ Copyright, Designs and Patents Act 1988, §107 (1) (b)
  46. ^ Copyright, Designs and Patents Act 1988, §107 (1) (c) and (d)
  47. ^ Copyright, Designs and Patents Act 1988, §107 (1) (e)
  48. ^ Copyright, Designs and Patents Act 1988, §107 (2)
  49. ^ Copyright, Designs and Patents Act 1988, §107 (3)
  50. ^ The Copyright and Related Rights Regulations 2003, §26 (1) and (3)
  51. ^ The Copyright and Related Rights Regulations 2003, §24
  52. ^ "Guide to offences". UK Intellectual Property Office. http://www.ipo.gov.uk/crime/crime-resources/crime-offenceguide.htm. 
  53. ^ "Your Interview: Michael Geist". Canadian Broadcasting Corporation. 2008-04-07. http://www.cbc.ca/news/yourinterview/2008/04/michael_geist.html. 
  54. ^ "In depth: Downloading music". Canadian Broadcasting Corporation. 2006-05-01. http://www.cbc.ca/news/background/internet/downloading_music.html. 
  55. ^ See for instance Thomas Jefferson: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."
  56. ^ Joseph Stiglitz, in Towards a Pro-Development and Balanced Intellectual Property Regime, argues that information is a global public good.
  57. ^ Carter, Stephen. Digital Britain Final Report, Department for Culture, Media and Sport & Department for Business, Innovation and Skills, June 2009.

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