Copyright infringement of software

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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.


Software piracy as price control

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.

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: if a society encourages the monopolization of something that can be infinitely duplicated, will such a society ever invent and take advantage of a thing like the replicator from Star Trek? More feasibly, will such a society proceed further down the slippery slope and copyright (and potentially monopolize or control) things that are normally currently shared, such as specific strains of crops or certain medical procedures or compounds?

While it is possible that certain "public" things such as strains of crops and medical procedures could be copyrighted in the future it is certainly not probable. Certainly governments should not allow individuals to copyright technologies that are essential to living. Even if this was the case the public would certainly retaliate with massive "piracy".

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 system 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 shutdown 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.

Preventing copyright infringement

Some approaches used for prevention of software copyright infringement:

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 (STS) mentions that "the Internet has unleased 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; 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 is a complicated and multifaceted topic which affects almost every aspect of our lives. What we decide to do about piracy as a society will determine our own cultural development or lack there of in the future.


  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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