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 Chilling Effects Clearinghouse > Piracy or Copyright Infringement > Frequently Asked Questions Printer-friendly version

Frequently Asked Questions (and Answers) about Piracy or Copyright Infringement

  • Q: What is the purpose of copyright law?
  • Q: If I am accused of "piracy," what does this mean?
  • Q: Is all copying piracy?
  • Q: Why is "piracy" such a big issue now?
  • Q: My website contains a disclaimer that clearly states that I do not support or promote copyright infringment. Will this protect me?
  • Q: Why are copyright holders concerned about piracy?
  • Q: What are the penalties for copyright infringement, such as making infringing copies of software?
  • Q: I run a website but I never actually upload or download copyrighted materials. Could I be liable for what visitors to my site do?
  • Q: What is vicarious liability?
  • Q: What is contributory infringement?
  • Q: So am I better off not monitoring my website if I want to avoid contributory infringement liability?
  • Q: Am I protected by Digital Millennium Copyright Act's Safe Harbor?
  • Q: Can I copy or distribute software that is out of print and has been abandoned for years?
  • Q: Aren
  • Q: Isn't sending my friend a music file from a CD I already own just like loaning her the physical CD?
  • Q: Aren't I allowed to make a backup copy of my software?
  • Q: What if the alleged infringement happens outside of the U.S.?
  • Q: I didn
  • Q: How can a webmaster directly infringe copyright?
  • Q: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?
  • Q: ISP as Copyright Cop
  • Q: What does perpetuity mean?
  • Q: What is RICO?
  • Q: What are "punitive damages"?

    Question: What is the purpose of copyright law?

    Answer: Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

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    Question: If I am accused of "piracy," what does this mean?

    Answer: "Piracy" is slang for copyright infringment, usually used to describe the unlawful copying of software, videogames, movies or MP3s. Copyright law gives a creator of software, music, literature and other works a limited monopoly to reproduce or distribute in the created work. If you are accused of piracy, then someone is claiming that you have violated their copyright by copying part or all of their work without authorization, or have enabled other people to make such copies.

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    Question: Is all copying piracy?

    Answer: No. Copyright gives the owner exclusive rights to reproduce, adapt, publicly distribute, perform and display their work. Nonetheless, the law allows "fair use" of copyrighted material. Fair use permits, in certain circumstances, the use or copying of all or a portion of a copyrighted work without the permission of the owner. Copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider, in part:
    (1) the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes);
    (2) the nature of the copyrighted work (giving creative works more protection than factual works);
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (including size and quality- i.e. Does the portion represent the "heart" of the work); and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Courts balance these factors, placing an emphasis on the fourth, however rulings have been unpredictable. Parody may be protected by fair use where the user is actually making a comment on or criticism of the copyrighted material, even if a profit is made from the use. Still, distributing copyrighted software will rarely be fair use because people will use those copies instead of buying the software from the legitimate vendor.

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    Question: Why is "piracy" such a big issue now?

    Answer: Digital technology allows perfect copies and easy distribution of some works. That makes it easier for people to make and get copies of songs or videogames, and more difficult for copyright holders (record companies, etc.) to control the works once they are released to the public. This new technology has changed the way content distributors relate with their customers, and law and business models are just trying to catch up.

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    Question: My website contains a disclaimer that clearly states that I do not support or promote copyright infringment. Will this protect me?

    Answer: Adding such a disclaimer on your web site will not necessarily protect you from a lawsuit or criminal liability if in fact copyrighted works are being illegally copied and distributed. For more information, you should see the Safe Harbor provisions of this website.

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    Question: Why are copyright holders concerned about piracy?

    Answer: Free speech is protected by the U.S. Constitution but so are property rights. Copyright law provides incentives for creating. One of the incentives for creating software, music, literature and other works is being able to reap the financial benefits as the creator. Illegitimate distribution of copies may prevent the copyright holder from benefiting from the sale of legitimate copies of the product. The theory is that significantly fewer people would buy copies from the copyright holder if other copies were available cheaper or for free.

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    Question: What are the penalties for copyright infringement, such as making infringing copies of software?

    Answer: In a civil suit, an infringer may be liable for a copyright owner's actual damages plus any profits made from the infringement. Alternatively, the copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504)

    Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment depending on the nature of the violation. (No Electronic Theft Act, 18 U.S.C. 2319)

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    Question: I run a website but I never actually upload or download copyrighted materials. Could I be liable for what visitors to my site do?

    Answer: You could. Under certain circumstances, bulletin board operators and webmasters can be subject to both civil and criminal liability for contributory or vicarious copyright infringement when unauthorized copies of software (or the direct means to obtain such software) are found on their sites. If you know that people are using your site to find warez or cracked video games, you may have an obligation to do something about it, particularly if you benefit financially in any way, or are able to control the unlawful copying. You can protect yourself by complying with the DMCA Safe Harbor.

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    Question: What is vicarious liability?

    Answer: Vicarious liability, a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site.

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    Question: What is contributory infringement?

    Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy.

    Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.

    To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.

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    Question: So am I better off not monitoring my website if I want to avoid contributory infringement liability?

    Answer: Even though not actually knowing about a violation occurring on your website may shield you from contributory infringement liability, a

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    Question: Am I protected by Digital Millennium Copyright Act's Safe Harbor?

    Answer: You may be, if you follow the DMCA's strict requirements, though different courts have disagreed on how to apply the protections. The DMCA, in the Safe Harbor provisions of 17 U.S.C. 512, limits the liability of "online service providers" (OSPs) for copyright infringement by their users. Though some debate remains over who qualifies as an OSP, the rule's history suggests that website and bulletin board operators qualify for its protections. The Safe Harbors apply to:
    1. Storage of material on a system at a user's request. (e.g. pirated software, serial numbers or cracker utilities posted on message boards or in chat rooms)
    2. Referral to other online resources. (e.g. linking to other sites that make infringing material available)
    3. Caching of online materials from other sites. (e.g. temporary storage of other web pages on one's own server)
    4. Acting as a conduit between users. (e.g. automatic delivery of e-mail between users)

    In order to be protected for storage and linking (1 and 2, above), you must:
    i. Lack actual knowledge and immediately remove or block access to the material when becoming aware of the infringement
    ii. Not benefit financially from the activity
    iii. Comply with the notice and takedown provisions and set up an agent to deal with complaints in accordance with the Act

    In order to be protected for acting as a conduit (4, above):
    i. A person other than the OSP must initiate the transmission
    ii. The process must happen automatically, without any selection or modification of material or recipients by the OSP
    iii. No copies of the material should be kept longer than necessary by the OSP

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    Question: Can I copy or distribute software that is out of print and has been abandoned for years?

    Answer: The right to

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    Question: Aren

    Answer: This is another myth without basis in U.S. Copyright law. Test periods are allowed only with explicit permission from a copyright owner as in licensed trial versions of software. Because sampling involves making a copy of the work, one of the rights explicitly reserved to copyright owners in

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    Question: Isn't sending my friend a music file from a CD I already own just like loaning her the physical CD?

    Answer: Loaning someone your CD or even selling (but not renting) it is protected by U.S. copyright law since no additional copies are being made. However, when you send a music file to someone else, you retain your copy and an additional copy is made. This copying may violate the exclusive rights of copyright holders.

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    Question: Aren't I allowed to make a backup copy of my software?

    Answer: Yes, but only for specifically authorized archival purposes, as specified in 17 U.S.C. sec. 117(2). This does not authorize sharing or selling of backup copies. The rule allows transfer to another person only with the explicit authorization of the copyright owner and only if he original copy is transferred. Backups for individual use and those considered "an essential step" in using the software with an individual's computer are also authorized.

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    Question: What if the alleged infringement happens outside of the U.S.?

    Answer: International rules including the TRIPs Agreement and the Berne Convention allow the U.S. to enforce its copyright rules under local laws in over 100 participating nations.

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    Question: I didn

    Answer: No. Copyright infringement actions do not require that you actually knew that the files were protected by copyright or that your use of the files violated federal law. Claims of ignorance cannot be used as a defense to direct copyright infringement, Lack of knowledge, is, however, a defense to contributory infringement. See What is contributory infringement?

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    Question: How can a webmaster directly infringe copyright?

    Answer: Courts are split on whether an operator of a web site that simply acts as a conduit for others to share information may be found directly liable for copyright infringement. Though technically, even a passive operator violates the copyright holder's exclusive right to distribute and display their materials, most courts have required an affirmative step by the operator to further the infringement. Thus creating and maintaining a system where others may post pirated software and information that helps others obtain pirated software would not generally be sufficient whereby actively participating and encouraging the piracy would be. Posting any tools which help users circumvent copy protection ("cracker utilities") is also prohibited by

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    Question: Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?

    Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint.

    If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials.

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    Question: ISP as Copyright Cop

    Answer: Notice that this letter comes from an Internet Service Provider (ISP) and not from a copyright owner. The Digital Millenium Copyright Act both protects ISPs from copyright liability (leaving the end user with that liability) and requires ISPs to participiate in a "takedown" process when copyright owners claim infriging use. See the FAQs associated with this notice for more information.

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    Question: What does perpetuity mean?

    Answer: Black's Law Dictionary defines perpetuity as "the state of continuing forever." So in this context the writer of the cease and desist letter is trying to make the recipient agree never to post to the mentioned websites ever again.

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    Question: What is RICO?

    Answer: RICO is short for the Racketeer-Influenced and Corrupt Organizations Act, which allows individuals to file suit against people who engage in "racketeering." Racketeering can include a variety of statutorily defined crimes; mail and wire fraud are the most common examples. A brief guide to this quite complex statute is available at http://www.ricoact.com

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    Question: What are "punitive damages"?

    Answer: Punitive damages are damages intended to punish and deter similar wrongful conduct rather than merely compensate for losses suffered by the plaintiff (called compensatory damages). Punitive damages are authorized when the defendant acted with recklessness, malice, or deceit. As for the amount of punitive damages awardable, the Supreme Court has held that three guidelines help determine whether a punitive-damages award violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the reasonableness of the relationship between the harm and the award; and (3) the difference between the award and the civil penalties authorized in comparable cases." BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996).

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