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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.

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.

References:

1) Lessig, Lawrence. 2004. Free Culture. New York: Penguin.

2) Luckenbill, David F. and Susan L. Miller. 1998. "Defending Intellectual Property: State Efforts to Protect Creative Works." Justice Quarterly 15:93-120.

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