Copyright infringement terminology

[DawnFalcon]

Okay, restate: Not all unauthorised copying is illegal. There is unauthorised copying which falls into the scope of fair use/dealing, some falls into illegal/unenforceable EULA's and some in the UK which can't be prosecuted.

This is distinctly different from an offence such as theft, which is always illegal.

[pdurrant]

Originally Posted by DawnFalcon

Okay, restate: Not all unauthorised copying is illegal. There is unauthorised copying which falls into the scope of fair use/dealing, some falls into illegal/unenforceable EULA's and some in the UK which can't be prosecuted.

This is distinctly different from an offence such as theft, which is always illegal.

I can go along with all that (with minor quibbles I won't bother with.)

But you seem to have missed my point, (or you disagree with me), that there's some illegal unauthorised copying which is more illegal than others. For me, that class includes obtaining a unauthorised copy of a digital file, rather than anything to do with personal use of an authorised copy.

And it is for these acts that I feel the term "copyright infringement", although technically correct, isn't sufficient as it fails to make this distinction.

[Shaggy]

Originally Posted by pdurrant

Now we're getting into things that differ from country to country. In the UK there is a clause in the copyright law that permits making a backup of a computer program. An ebook is not a computer program. Currently, in the UK it is not permitted to make a backup copy of an ebook, just as it is not permitted to copy a CD onto a hard disk.

The problem is that misusing terminology (like stealing, etc) only adds to the confusion. People start letting the "industry" or the "pirates" convince them that they are allowed or not allowed to do things regardless of what the laws actually say.

For example, others in this thread have used the term "illegal downloading". What, exactly, does that mean? If you get rid of all the misinformation being spread, what part of copyright law actually makes downloading without permission illegal? As has been discussed in numerous other threads, if you really did make downloading without permission illegal, it is going to have a huge impact. The internet as it exists today would be virtually unusable. Everyone would potentially be guilty without even knowing it. This is another example of people hearing terminology misused and then becoming misinformed. Uploading is illegal, and uploading is what people are sued for. The term "downloading" is popularized (and even used in media), but leads people to think that things are illegal which actually aren't.

[Shaggy]

Originally Posted by asjogren

I think there might be another category of "copyright infringement":

Those that honor the intent of the copyright of an eBook as if it were a paper book - regardless of the attempts to:
- limit rights via licensing agreements
- artificially restrict purchases based on geography
- constrain what devices are used to read via DRM or format

I like to call that enforcing my own DCRM instead of their DRM. (Digital Consumer Rights Management)

[DawnFalcon]

Originally Posted by pdurrant

And it is for these acts that I feel the term "copyright infringement", although technically correct, isn't sufficient as it fails to make this distinction.

If unauthorised copying is actionable is not a science. It's something which needs to be weighed on a case by case basis. By trying to invent another word, which will immediately be applied by the studios and publishers to all unauthorised copying regardless of the law... (the dispute moves up in energy level again, we have yet another word, and I sigh)

[pdurrant]

Originally Posted by DawnFalcon

If unauthorised copying is actionable is not a science. It's something which needs to be weighed on a case by case basis. By trying to invent another word, which will immediately be applied by the studios to all unauthorised copying regardless of the law... (the dispute moves up in energy level again, we have yet another word, and I sigh)

But perhaps better than calling it piracy or theft?

[pdurrant]

Originally Posted by Shaggy

For example, others in this thread have used the term "illegal downloading". What, exactly, does that mean?
[...] The term "downloading" is popularized (and even used in media), but leads people to think that things are illegal which actually aren't.

Downloading a copy of a copyright work without permission is not illegal in some countries, but it is illegal in others.

[DawnFalcon]

Originally Posted by pdurrant

But perhaps better than calling it piracy or theft?

It's unauthorised copying, which is sometimes illegal. This paints a picture quite different from the black and white one big industry promote. Adding another word won't change how the studios and publishers use language... (it's just bloat in the language, which is worth opposing on it's own merits)

[Shaggy]

Originally Posted by pdurrant

Downloading a copy of a copyright work without permission is not illegal in some countries, but it is illegal in others.

I have never negotiated permission with the actual rights holder for any of the IP I have bought/downloaded. Have you? What I normally do is receive that content from a 3rd party who has negotiated permission to distribute, but that is not the same thing. There is no such thing as permission to receive in copyright, although some people would like everyone to think there is.

[thename]

Originally Posted by pdurrant

Suggestions for a new term welcome. I'd prefer it not to be a term for an existing crime — so not piracy or bootlegging.

I like the idea of "innocent infringement." This covers a huge gamut of things that could, in the strict, legal sense, be considered "copyright infringement" but any reasonable person would balk at such an interpretation.

From the aforementioned DRM stripping to correct layout issues or promote iner-operability to accidentally purchasing non-licensed musical content (allofmp3.com anybody?). These are things that I think most people would say "what's wrong with that?" but the courts have, on occasion, disagreed.

To me I'm "innocently infringing" by allowing myself to have protected PDFs and EPUBs on my Sony Reader at the same time. I'm "innocently infringing" by keeping DRM-stripped backups from my TiVo. Heck, I'm "innocently infringing" by occasionally playing my music loud enough for others to hear! Or leaving music files (even watermarked, purchased files!) in a directory that is potentially open to someone savvy enough to get at them.

[MrBlueSky]

Originally Posted by pdurrant

Is it possible to come up with a term for the act of obtaining digital copyright material without payment or the permission of the copyright holder ...

Yes, its called borrowing.

[pthwaite]

Perhaps what we all want is "e-borrowing" and to be able to easily transfer said ebook onto whatever device we own to read it.
While at present the main formats may be epub and mobi (including derivatives) things move on and so 5 years down the road say your present e-reader dies, you get a newer model and can then no longer read your book. One of the problems with digital files in general. At least if you were allowed to format shift, this would resolve many issues.

[Steven Lyle Jordan]

Originally Posted by DawnFalcon

Not all unauthorised copying is illegal.

Originally Posted by pdurrant

But you seem to have missed my point, (or you disagree with me), that there's some illegal unauthorised copying which is more illegal than others.

You're tripping over some misconceptions here: You can't have something that is stated as illegal to do, and be legal to do, at the same time. It either is, or is not, legal.

The fact is that the differences in national laws override certain elements of each other, including the legality of copying. This means that it is, in fact, legally authorized in one country, whether it has been authorized in another country or not. Law in nation B trumps law in nation A. Taking both nation's laws into account removes the ambiguity.

As Mike L pointed out, the laws involving copyright are written as they should be, media-independent. Most of the related discussion is intended to rationalize people's right to do whatever they wish with a file, authorized or not. The trumps and loopholes involved with conflicting national laws are therefore being applied as smokescreens to hide behind.

If anything, the laws need to be updated and revised to establish common laws for all participating countries, so there are no "trumps" and inconsistencies from nation to nation to obfuscate the issue. This alone would solve most of the gray areas involved in infringement. To be sure, there are some major differences between physical media and digital files, so possibly the laws should also be revised to make clear how they apply to digital as well as physical media.

To answer the central question: Again, we are playing with semantics. Doing something that is not authorized by copyright is copyright infringement. Taking something in violation of the intended method of trade (ie, paying for it) is theft. And for the record, it is possible to be both at the same time: Making a copy and giving it to someone in an unauthorized manner is both copyright infringement and theft.

You don't need a new word... but you may need to use both existing phrases together.

[DawnFalcon]

Originally Posted by Steve Jordan

You're tripping over some misconceptions here: You can't have something that is stated as illegal to do, and be legal to do, at the same time. It either is, or is not, legal.

Sure. Well, let's see if I can come up with a good way to state this:

"The test to see if a given copy is legal or not may depend on a number of factors. An authorised copy is always legal. An unauthorised copy needs to be subjected to further tests to determine if it is legal or not - these are known as fair use / fair dealing."

Taking something in violation of the intended method of trade (ie, paying for it) is theft."

Incorrect. Theft is depriving someone of a possession of theirs without consent. Without deprivation, the crime is not theft and using the word is simply and plainly incorrect.

There is no great need to change laws or the system of justice concerning IP or civil law. Older, unrealistic, business models have to be allowed to die out, and user rights need to be scrupulous protected.

If we do that, then at the end of the day will we have a sustainable, rich flow of media rather than one which is choked by the dead hand of a few companies who will not let go of their hold for anything, especially the law of the land.

[pietvo]

Originally Posted by Steve Jordan

As Mike L pointed out, the laws involving copyright are written as they should be, media-independent.

That is not true in all cases. The Dutch law is media-independent for the source of a copy (you are not allowed to copy the `work'), but not with respect to the destination. The law makes a distinction between physical copies and digital copies. Although these terms are not used as such it is clear from the explanations that there is a separate article in the law regarding making digital copies (including digital copies from physical objects, like scanning a book). In the latter case you have more rights: you can make a copy for yourself, for private, non-commercial use, whereas for making photocopies you are only allowed to copy a small part, but you can have the copying done by someone else on your behalf.