Introduction
Copyright piracy refers to the infringement of copyrights, or, in other words, piracy in terms of illegal copying and distribution of software, music, and films. It is seen that the original copyright holders stand to lose economically and reputation-wise since cheaper editions of their works are available at lower rates in the marketplace, constraining them to take legal action to protect their business interests. In a recent Canadian court decision, it was seen that the Court handed over 60 days imprisonment and fines to the proprietor of the firm, which was found guilty, on the count of commercially distributing illegal copies of reputed software programs.
The judge considered ” the harmful impact piracy has on the Canadian economy, legal jobs and businesses, in imposing a custodial sentence and this will likely be a very important factor in future sentences handed down.”(Microsoft: 2008: Microsoft Canada Co. and Symantec Corp. Welcome a Recent Court Decision in the Fight against Software Piracy.
Impact of software piracy on the US economy
It is necessary for this study to consider the impact of software piracy on the US economy and also what steps need to be taken for resolving the issue according to law.
It is seen that software piracy is a major problem in the US, “and it is to be believed that nearly 25% of the computers using Americans are now using duplicate software. It is also seen that 37% of the business software sold globally reaches $12 Billion, which equates to 15% of the total generated by the industry. It is seen that nearly 97% of the software available in Vietnam and nearly 94% in China are not original but dupes or copies. (Mike Magee in Incisive Media Investments Ltd : 2008: The Inquirer: Software piracy in Asia exposed.
Further, it is also seen that for every one piece of software identified and seized, there are nearly four pieces in the marketplace waiting to be sold and distributed. Thus it is seen that finding solutions to the menace of software piracy is more real than apparent, in more menacing proportions, than what it is lead to believe to be.
Need for enforcing and deploying robust laws
It is necessary that robust criminal and civil laws need to be put into place which could effectively deal with the menace of software piracy. These could take the form of civil and criminal penalties, enforcement laws, and also rooting out the funding of these software piracy systems. The fear of imprisonment and stiff penalties may go a long way in rooting out the menace of software piracy from its very roots and install discipline and conformity in the software world. (Electronic Commerce: Pete Loshin, John Vacca: P.44. ).
One of the most important aspects regarding software piracy is that there are not of a constant nature and keeps changing. Therefore, it could be extremely difficult to follow a set pattern for dealing with software piracy, and a lot would depend upon the characteristics of each case study and its impact on the total picture. This is because pirates are themselves aware of the high risks they are indulging and frequent changing of modus operandi is necessary for trying as far as possible to carry out their nefarious tasks without being caught.
It is also necessary that law enforcement agencies change their practices and enforcement according to the settings and environmental requirements of each case so that the ill intentions of the software pirates are not successful, both in the short period as well as the long period. Software piracy is a major offense not only because it harms the genuine industry economically but it also erodes confidence and future investments programs.
Nobody would like to invest money in an industry that is plagued with piracy since they feel that, in any case, the products of the new industry would be found in the open pirated markets at much cheaper rates, thereby the credibility and profit-making caliber would be significantly undermined. Once profitability and prospects are undermined, no sane investor looking for growth and profit-making for his investments would like to invest in such kind of deals; further, it also affects employment and employability since losing concerns, whether in large or small and medium scale industries (SMI) need to address to aspects of growth and profitability concerns in a highly competitive industry like software.
Therefore, it is necessary that not only should there be robust laws and regulations, but there should be strong enforcement in place to enforce the same.
The detriment that software piracy can bring about can be seen from the following Table:
Thus it could be seen that if a determined government is able to curb the incidence and intensity of software piracy on a large scale, it is estimated nearly 2 million jobs and, more significantly, $36 Billion could be achieved by the government. (Electronic Commerce: Pete Loshin, John Vacca: P.44. Protecting the security of information: 39.
There have been many cases of instances of litigation springing from whether the use of the software could be seen in terms of piracy or otherwise.
Soft man Products Co. LLC. v. Adobe System
In the case of Softman Products Co. LLC. v. Adobe System Inc. that SoftMan has infringed on Adobe’s trademark by distributing incomplete versions of Adobe software. The central difference between these allegedly incomplete products and the genuine Adobe software is that when SoftMan breaks the bulk of Adobe collections and resells its component parts, such individual pieces of software may not be supplemented with registration information which would entitle the current user use of Adobe’s customer support and technical services.
Adobe argues authentically that users may be doubtful regarding the nexus between the genuine Adobe software and the illegal versions distributed by Softman because the user may think it is a retail version when actually it is a piece of the total outfit.
Infringement of patent rights
The aspect of infringement of patent rights held by Adobe needs to prove the following aspects:
- The probability of success on the merits of this case- that is, sale by part or piecemeal basis
- It has to be substantially proved that Adobe has incurred or is incurring heavy losses due to this transgression by Softman.
- The degree of hardships or economic deprivation is more on the side of Adobe rather than Softman, and the Court needs to take cognizance of this fact.
- Public interest is in favor of an injunction restraining the counter–defendant, Softman, from the use of its current distribution pattern.
In order to reinforce its claim on the proceedings of this case, Adobe sought the decisions conveyed in by leading case of Microsoft Computers Corpn. v. Harmony Computers & Electricals Inc. 846 F.
Microsoft Computers Corpn. v. Harmony Computers & Electricals Inc. 846 F
In this case, it is seen that the company was indulging in the spurious software copies of Microsoft Corporation. However, in this case, Adobe had not charged that Softman was dealing with duplicate or spurious copies of Adobe products. What it was fundamentally charging was that, without proper licensing arrangement, Adobe was breaking bulk of original Adobe products and selling on a piecemeal basis, without arrangement from the original manufacturers.
All of Adobe’s dealings were through licensing agreements with customers and affiliates, but neither was Softman a licentiate of Adobe nor was the former entitled to sell on their behalf. Therefore, licensing of Adobe products without proper authority constituted a software infringement on Softman’s part. A court decision in Adobe v. Softman case:
However, eventually, the Courts determined that this was not a case of licensing but of sale, and what basically Softman had done was to buy Adobe products and sell them as the First sale, which the Courts felt was not illegal or punishable in any way. Through Softman’s efforts, the Courts could not visualize any harm being done to Adobe’s business image or future. In the very words of the Court, “Adobe has not demonstrated that it will suffer irreparable injury in the absence of preliminary injunctive relief, particularly in light of Adobe’s own admissions that it has known about SoftMan’s activities since 1997.”.
In this case, the aspects involved were that the distributor removed the bar codes and other Identification marks of Adobe educational software and sold them to non-educational end-Users. The Courts, after making a full investigation into the various aspects of this case, a verdict that this was a case of licensing and not sale, and the copyright owners, in this case, Adobe Systems, has retained the ownership despite having licensed it since licensing transfer possession and not ownership of the title of copyrights. According to the law, if
“the copyright owner has accredited the copy of its work, rather than reassigned identify, it retains ownership, and there has been no first sale. In that event, sale by the licensee(or anyone obtaining from the licensee) infringes the privileges of distribution and amounts to copyright violation. “(United States District Court Central District of California: P. 14- lines 6-10).
Conclusions
Thus it could be seen that the aspect of software privacy would depend upon the surroundings of each case based on its merits and on the implications being sought by the parties that impress upon the Jury regarding the genuineness of the stands taken by the litigants and the process of law.
While it is necessary that judicial pronouncements are intended to offer succor to the aggrieved and injured parties, in terms of relief and compensatory benefits, it is also necessary that the role of justice needs to be made suitable to the need of the hour and the impact of current technology., including competition and product sustenance in the long run. Products and firms need to make themselves sustainable in the software marketplace in the long run, for which it may sometimes be necessary to go overboard or capitalize on market opportunities for which existing laws may either be absent or be steeped in ambiguity.
It is in such instances that lucid and clear-cut laws need to be instituted to attend to the legal ramifications of complexities that may arise in areas of software and its attendant risks and challenges of which piracy may be of contextual interest. In a world of dynamic changes, especially in hi-tech software, technologies may be rendered obsolete even before they could become fully operationalized and market-oriented. The purpose of laws is to protect products and producers from the vagaries of natural and man-made causes, which could seriously impact the performance and growth of products, services, and utilities in the long run.
Cited Works
Microsoft: 2008: Microsoft Canada Co. and Symantec Corp. Welcome a Recent Court Decision in the Fight against Software Piracy. Web.
(Mike Magee in Incisive Media Investments Ltd : 2008: The Inquirer :Software piracy in Asia exposed. Web.
Electronic Commerce: Pete Loshin, John Vacca: P.44. Protecting the security of information. Web.
Electronic Commerce: Pete Loshin, John Vacca: P.44. Protecting the security of information: P. 39. Web.
Linux Journal: Softman v. Adobe. Web.
(Linux Journal: Softman v. Adobe: IV Conclusion. Web.
United States District Court Central District of California: P. 14- (lines 6-10). Web.