Piracy: Copyright Infringement Defined

Copyright Terms – What is the Official Definition of Piracy?

A colloquial term, “piracy” refers to any activity directed toward the improper acquisition of a trade secret or other forms of intellectual property that belong to another. The word has no legal significance.

Copyright Infringement

Any unauthorized use of a copyrighted work that violates the copyright owner’s exclusive rights in the work constitutes an infringement. Common examples of infringement are: making unauthorized copies of an original work for commercial purposes, using a composer’s tune in a song with different words, including in a computer program important software subroutines authored by someone else, adapting another’s work in one medium (such as a book or play) for use in another medium (such as a movie or CD-ROM), and outright plagiarism of somebody else’s prior original copyrighted work.

Once a copyright owner suspects infringement, the owner may file a lawsuit against the infringer for damages in a federal court, provided that the copyright has been registered with the U.S. Copyright Office. An expedited registration process is available for those who have not previously registered and need to get into court right away. But the fact that the infringement began before the registration occurred will diminish the rights and remedies available in court unless the work was first published less than three months previously.

Whether or not a work will be found to have infringed an earlier copyrighted work largely depends on three factors:
• Was the first work the subject of a proper copyright?  This factor is satisfied if the first work was independently created, has enough creativity and is fixed in a tangible medium.
• Did the infringer copy the work?  In the absence of an admission that copying occurred, this factor depends on whether the author of the second work had access to the earlier work and whether there is a substantial similarity between the two works. The stronger the similarity, the greater the chance that a court will find that infringement occurred. Generally, a greater similarity is required for factual or nonfiction works to be considered infringing than is required for works of fiction.
• Did the infringer improperly use the copied material?  The third factor addresses whether the infringer copied by paraphrasing or by repeating the expression verbatim, and how much was copied. Again, the key determination is how substantially similar are the two works. An infringement might be found based on several paraphrased passages of a few hundred words each, or just 20 words copied verbatim.

Some courts use a three-step approach to decide whether the substantial similarity element (in the second factor) has been shown. First, they identify the aspects of the two works that are subject to copyright protection. Then they make an objective comparison of these aspects to see how alike they are. If they are similar enough to warrant a suspicion of infringement, the courts then make a subjective determination as to whether the works are substantially similar enough to justify a finding of infringement.