Intellectual Property Piracy Essay ⋆ Essays on Controversial Topics ⋆ EssayEmpire

From a legalistic point of view, intellectual property refers to the exclusive rights to intellectual objects. In the United States, intellectual property includes the rights conferred by copyright, patent, and trademark laws. Copyright law grants an author the exclusive rights to reproduce, distribute, perform, and adapt a literary, musical, or artistic work; patent law gives an inventor the exclusive rights to make, use, and sell an invention; and trademark law grants a business the exclusive right to use a particular symbol to identify its products. More conventionally, intellectual property refers to the intellectual objects themselves—the original expressions of ideas fixed in tangible forms, such as books and records, and novel applications of ideas embodied in machines and technical processes.

In the United States, violation of the rights to intellectual objects is a civil offense. The offender is liable to civil prosecution and remedial sanctions, such as compensation of the victim. For example, a person who wrongfully makes a patented tool is liable for civil action, as is a person who wrongfully copies a book’s plot or labels a product with a mark resembling the one used by a company for its product. Forms of copyright and trademark infringement that are willful and oriented toward financial gain also are criminal offenses; the offender is eligible for criminal prosecution and punitive sanctions, ranging from fines to imprisonment. The unauthorized duplication of computer software for commercial gain is a criminal violation of copyright law, and the fraudulent labeling of apparel as genuine designer clothes for commercial gain is a criminal violation of trademark law.

Piracy and Theft

One type of intellectual property offense is piracy. Piracy is a violation of copyright law; it involves the unauthorized acquisition, reproduction, distribution, or performance of a creative work. Some people limit the definition of piracy to misuse that is willful and oriented toward financial gain—purely criminal violations of copyright. Other people, including most copyright owners, embrace a more expansive view, regarding piracy as virtually any unauthorized use of a creative work. For example, the Software and Information Industry Association defines piracy as “the unauthorized use of software.” It includes downloading a legitimate copy of software onto multiple computers, producing and distributing copies from a legitimate source, renting software without permission, and exchanging software on the Internet without permission.

Although copyright owners commonly characterize piracy as theft, these actions differ in several ways. They differ in the nature of the victim’s loss. In theft, the offender acquires a physical object and thus deprives the victim of that object. In piracy, the offender misuses an intellectual object and thus deprives the victim of an opportunity to profit from the use of that object. Unlike a customary form of property, a creative work is both nonexclusive (it can be in many places at the same time) and inexhaustible (use does not deplete it). Misuse, then, does not deprive the victim of the object; a person can obtain a sound recording, reproduce it, and disseminate copies without touching the master. Rather, misuse threatens the victim’s capacity to exploit the object fully, a loss that is less certain and less tangible than the loss typically suffered by victims of theft.

Piracy and theft differ in the degree to which the objects covered by law are vulnerable to wrongful behavior. Unlike a customary form of property, a creative work is nonexclusive and thus relatively difficult to protect. Further, unlike a typical property owner who seeks to secure a belonging, a copyright owner seeks to make a creative work accessible to people. Creative works can be viewed as “diffuse” private property, for they are spread across the physical and social landscape. Such diffusion is a function of owners’ economic pursuits. Creative works are owned primarily by corporate actors—publishing houses, record companies, and so on—and these actors seek to exploit their works. What owners market are tangible items—books, compact disks, and the like—not the works fixed in them. Law permits consumers to do anything they want with these items. But it forbids consumers from exploiting the works fixed in them, as owners maintain dominion over these objects. To make a profit, owners want to market the tangible items widely. Yet wide distribution of the items means making the works embodied in them accessible to many people, including potential offenders, and this increases the vulnerability of these works to misuse.

Piracy and theft also differ in the degree to which they can be discerned. In theft, the offense often is apparent; for example, the victim quickly recognizes that her car has been stolen. In piracy, the offense often is elusive, if not invisible. Wide distribution of the items in which creative works are fixed not only makes the works accessible to many people but also places them in the domain of consumers. And owners are limited, practically and legally, in their capacity to monitor how consumers use their works. Thus, victims of piracy have a relatively hard time detecting offenses.

Although piracy and theft differ, piracy is increasingly being identified as a problem not unlike theft. Piracy is not new; unauthorized copying of creative works can be traced as far back as the invention of the printing press. However, piracy was long ignored, largely because it was inconsequential to owners. This view has changed. Piracy is now regarded as problematic, especially by copyright owners. This is so, in part, because technological innovation has upset the long-standing dominance of owners. Recent years have witnessed the development and proliferation of affordable, easily manageable exploitative information technologies—devices that enable people to access, reproduce, and distribute creative works and thus use works in ways that violate the rights of owners. Given greater control over creative works, consumers have misused them more frequently. Owners have pressed for the declaration of various uses as wrongful and the recognition of piracy as a serious problem.

The Extent of Piracy

It is difficult to determine the extent of piracy, as statistics are meager. According to the Administrative Office of the United States Courts, the federal district courts in 2005 processed a total of 4,595 civil cases of copyright infringement, an increase of 124 percent over the number of civil cases handled in 2000. According to the Executive Office of the United States’ Attorneys, the district courts in 2005 also processed 81 criminal cases of copyright infringement, an increase of 153 percent over the number handled in 2000. To be sure, these figures are considerably smaller than the numbers of conventional property crimes processed by the criminal justice system. However, they reflect only a fraction of all incidents of piracy. While the figures refer to cases handled by the federal courts, some copyright owners employ state rather than federal law to manage piracy. In addition, the number of incidents that do not come to the attention of officials is substantial. Some owners do not take legal action against minor forms of infringement, such as copying for personal consumption. Most owners also are unaware of many offenses. The diffusion of creative works, people’s access to them, and the difficulty of monitoring use make it nearly impossible for owners to know whether or how frequently their rights have been violated.

Sensitive to the likelihood that court records reflect a small percentage of piracy, copyright owners have furnished statistics on the magnitude of piracy. These statistics take several forms, including losses from piracy. The Recording Industry Association of America, for example, reports that piracy costs the record industry at least $300 million a year in the United States and $4.2 billion worldwide; the Motion Picture Association of America claims that piracy costs the film industry $1.3 billion a year in the United States and $6.1 billion worldwide; and the Software and Information Industry Association states that piracy costs the software industry $3.2 billion a year in the United States and $12 billion worldwide. Such figures, of course, are questionable. Owners rarely indicate how they calculate the figures or identify the source of data used to compute them. Accordingly, the figures can be easily inflated, and it may behoove owners to inflate them.

Explaining Piracy

How can we account for piracy? Copyright owners commonly explain this offense in terms of easy access to information technologies coupled with a weak system of legal control. However, this argument is little more than speculation, for the problem has not been a subject of systematic investigation. Routine activities theory offers an alternative explanation. This theory proposes that piracy flows from the convergence in time and space of three elements: motivated offenders, suitable targets, and an absence of capable guardians.

Piracy requires a motivated offender, a person who is both willing and able to violate the law. In the United States, the desire to misuse creative works seems pervasive. It may stem partly from the ideology that informs copyright law, an ideology that taps basic cultural values. While intellectual property law endorses the economic principle that authors have a right to remuneration for their labor, it also endorses the democratic principle that citizens have the right to as much information as they deem necessary. The idea is that if people are to lead rich, meaningful lives, they must be able to draw upon and use the creative works of others. This principle encourages people to regard intellectual objects as free and to use them in any way they see fit. The desire to misuse creative works also may stem from the belief that the behavior is harmless. Piracy lacks the clear, tangible loss associated with conventional forms of crime, and this seems to make the behavior justifiable, even acceptable. Partial confirmation of this view comes from a 2006 Harris Interactive survey of American opinion about Internet file downloading. The survey found that 54 percent of youth regard downloading as wrong, while 92 percent regard shoplifting as wrong. It’s important to remember that a person who is willing to engage in piracy must be able to do so. The offense is facilitated, if not made possible, by exploitative information technologies, such as optical scanners, digital cameras and recorders, and personal computers.

Piracy requires a suitable target, an object that is appealing and vulnerable. In the United States, creative works have considerable value; they are in great demand and a source of enormous wealth. Creative works also are vulnerable to misuse. Obviously, they are accessible to people. Because they are designed for consumption, owners strive to make these objects affordable. Because access to information is cherished, democratic governments attempt to make many of these objects available through public channels, such as libraries. Moreover, the reduction of words, sounds, and images to a digital form has made it easier to reproduce, alter, and distribute creative works.

Finally, piracy requires an absence of capable guardians. In the realm of copyright, capable guardians have been limited. On the one hand, government efforts to protect creative works have been modest. Historically, the government has done little to control misuse. For the most part, agencies have registered works and assigned exclusive rights to them; owners have been responsible for guarding their rights and enforcing them. On the other hand, owners’ efforts to protect their works have been constrained. The diffusion of creative works, people’s easy access to these objects as well as exploitative information technologies, and people’s rights to use these objects in private have made it difficult for owners to monitor the use of their works and ensure that their rights are respected.

Controlling Piracy

Given the appeal and vulnerability of creative works and the availability of exploitative information technologies, copyright owners have endeavored to control misuse. These efforts have taken several forms.

Owners have mobilized the legal system to control piracy. In the United States, owners have urged lawmakers to provide better protection for creative works. The recording and film industries, for example, asked Congress to increase the penalties for record and film piracy. At the same time, owners have urged lawmakers to regulate exploitative information technologies. The film industry sought to control piracy by getting Congress to prohibit the manufacture and distribution of devices for defeating anti-copying treatments. More recently, copyright industries have asked lawmakers to regulate Internet services that enable people to freely exchange creative works online. In addition, owners have pressed law enforcement officials to identify and prosecute offenders, and many owners have developed programs to assist in this enterprise. They have encouraged people to report wrongdoing, and they have established security offices to investigate complaints, identify offenders, and assist officials in prosecuting them. Although owners have long emphasized the legal process in protecting against misuse, they recognize that it offers limited security and should be supplemented with other modes of control.

Owners have used technology to control piracy. Recognizing the difficulty of identifying and prosecuting offenders, owners have tried to make it difficult for people to misuse their works by erecting technological barriers to misuse. For example, to protect against unauthorized reproduction of works, recording companies have added digital watermarks and inaudible copy protection ciphers to recordings, film studios have applied anti-copying treatments to prerecorded DVDs, and computer software manufacturers have used copy-resistant distribution disks and encryption processes. Although technology has become an important means for controlling piracy, owners acknowledge that technological barriers are more likely to thwart the average user than the sophisticated user.

Owners have used education to control piracy. In the hope of getting people to recognize and honor their proprietary rights, owners have tried to shape popular attitudes toward the use of creative works. Through various media, they have expressed the obligations of consumers and drawn on familiar cultural frameworks in arguing against deviation from these obligations. Owners have claimed, for instance, that piracy is “theft,” a breach of “mutual trust,” and detrimental to the national good as well as to everyone who benefits from the creative enterprise. It should be noted that persuading people to honor the rights of owners is a formidable task, as many people do not seem to regard creative works as meriting the respect they accord conventional forms of property.

For years, piracy was modest at most, for many people were limited technologically in their capacity to misuse creative works. The tide has turned. The development and proliferation of exploitative information technologies coupled with the diffusion of intellectual products, the ease with which these objects can be obtained and manipulated, and the circulation of values and beliefs encouraging misuse have facilitated piracy and exacerbated the problem of controlling the activity. Not surprisingly, the viability of intellectual property has become a matter of serious concern.

Bibliography:

Lessig, Lawrence. 2004. Free Culture. New York: Penguin.
Luckenbill, David F. and Susan L. Miller. 1998. “Defending Intellectual Property: State Efforts to Protect Creative Works.” Justice Quarterly 15:93-120.
National White Collar Crime Center. 2004. “Intellectual Property and White-Collar Crime.” Retrieved March 17, 2017 (http://law.ui.edu.ng/sites/default/files/examination.pdf).

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