Terminology

The terms piracy and theft are often associated with copyright infringement. The original meaning of piracy is "robbery or illegal violence at sea", but the term has been in use for centuries as a synonym for acts of copyright infringement. Theft, meanwhile, emphasizes the potential commercial harm of infringement to copyright holders. However, copyright is a type of intellectual property, an area of law distinct from that which covers robbery or theft, offenses related only to tangible property. Not all copyright infringement results in commercial loss, and the U.S. Supreme Court ruled in 1985 that infringement does not easily equate with theft.

This was taken further in the case MPAA v. Hotfile, where Judge Kathleen M. Williams granted a motion to deny the MPAA the usage of words whose appearance was primarily "pejorative". This list included the word "piracy", the use of which, the motion by the defense stated, serves no court purpose but to misguide and inflame the jury.

"Piracy"edit

The term "piracy" has been used to refer to the unauthorized copying, distribution and selling of works in copyright. The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne in 1710, 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. Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale." Piracy traditionally refers to acts of copyright infringement intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as "piracy".

Richard Stallman and the GNU Project have criticized the use of the word "piracy" in these situations, saying that publishers use the word to refer to "copying they don't approve of" and that "they publishers imply that it is ethically equivalent to attacking ships on the high seas, kidnapping and murdering the people on them."

"Theft"edit

Copyright holders frequently refer to copyright infringement as theft, "although such misuse has been rejected by legislatures and courts". In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization. Courts have distinguished between copyright infringement and theft. For instance, the United States Supreme Court held in Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property. Instead,

"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 court said that in the case of copyright infringement, the province guaranteed to the copyright holder by copyright law – certain exclusive rights – is invaded, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.

A 1979 East German court ruling found that software was "neither a scientific work nor a creative achievement" and ineligible for copyright protection.

"Freebooting"edit

The term "freebooting" has been used to describe the unauthorized copying of online media, particularly videos, onto websites such as Facebook, YouTube or Twitter. The word itself had already been in use since the 16th century, referring to pirates, and meant "looting" or "plundering". This form of the word – a portmanteau of "freeloading" and "bootlegging" – was suggested by YouTuber and podcaster Brady Haran in the podcast Hello Internet. Haran advocated the term in an attempt to find a phrase more emotive than "copyright infringement", yet more appropriate than "theft".