Piracy May Have Cost Apple, iPhone Devs $450 Million

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Software piracy may have cost Apple and iPhone application developers some US$450 million in lost sales so far, according to a 24/7 Wall St. report.

The group based the loss figures on the number of applications sold through Apple's iTunes-based App Store since its launch in July 2008, and an average $3 app price.

So far, pirating iPhone and iPod touch applications first requires jailbreaking, or hacking the device to allow the installation of applications that haven't gone through Apple's review process and aren't available at the App Store. Once jailbroken, users that know where to look can find versions of apps available through the App Store with the built-in copy protection stripped out.

While some of the information used to find the $450 million loss figure comes from App Store sales estimates and the number of iPhones that have already shipped, some data points came from developers that included code in their apps that reports back from pirated copies.

About 75 percent of the copies of the iPhone art creation app Layers, for example, are apparently pirated, and some 95 percent of the copies of Fish Labs' Rally Master Pro 3D are pirated. What the report doesn't address, however, is that historically many of the people that pirate applications wouldn't have paid for them no matter what they cost.

While it's unfortunate that application developers aren't paid for every copy of their products that make it to user's Macs and iPhones, the actual cost in lost sales is probably lower than 24/7's estimated $450 million since many of those installed copies never would've been purchased.

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Numbers of “lost sales”, without any balancing data regarding the individual consumers’ likelihood to buy at a pricepoint above free, is an unquantifiable metric, and is therefore out of place in any serious discussion of business or economics.

John Harrison

I’m an indie iPhone game developer and I’ve seen massive piracy of my game, which I’ve blogged about.  My problem with piracy isn’t so much lost sales but lost marketing opportunity.  If my game is beloved by pirates and downloaded thousands of times by them that helps me not at all in the App Store.  That isn’t going to get my game on a Top 25 list or help its rating.  Even when the pirates blog about my game they link exclusively to pirate sites and never to the official game site or the App Store page.  By stepping out of the App Store ecosystem pirates hurt the small developers that produce the games they play.


Numerical accuracy in this case is not required.  All that is needed to generate hysteria is a large number and a smart sounding methodology.  Jailbreakers can then be demonized and hunted down like animals.

While I can understand Apple wanting to review iPhone apps that might do weird things on a cell carrier’s network, how can they justify reviewing iPod Touch apps?  What can an iPod Touch do on a WiFi network that you can’t already do with a Windows Mobile PDA device (or any laptop for that matter)?


Mahkra, I could not have said it better myself. Exactly right.

John Harrison


There is a distinction to be made between jailbreakers and pirates.  One can be a jailbreaker without being a pirate, and I think there are legitimate reasons to want to run your own software on your device.

While I do think that ripping someone off for a couple of bucks is despicable I want to reiterate that it isn’t the lost sales that I bemoan.  Piracy hurts small developers in ways other than lost sales.


Numerical accuracy in this case is not required.  All that is needed to generate hysteria is a large number and a smart sounding methodology.  Jailbreakers can then be demonized and hunted down like animals.

SSSSHHHHH….be verwy, vewry quiet…I’m hunting jailbweakers….”


This is a market function. There is a price for getting pirated apps. It takes time and knowledge. Economic theory has a principle related to replacements for goods, products, or services. If the price of the true app is too high, a replacement will be sought, whether that is a different lower priced app, no app at all, or a pirated app.

If the price is low enough, the replacement will not be sought out, because it will be more expensive (perhaps in terms of time and effort) than obtaining the true app.

Extensive pirating is a strong indication that the market does not respect the price at which the application is offered.

Also, as noted by others, many of the apps would not be purchased at any price, and thus, although the pirated apps represents a lost opportunity or a lost lead to a potential sale, it is not at all appropriate to suggest that those apps represent lost income or revenue.

Bosco (Brad Hutchings)

So John, do you think that the App Store hinders your ability to capture either sales from initial pirates or at least credit for the popularity of your app? I’m curious how you perceive that.


It would be interesting learn how the the app developers determine whether a copy is pirated.  iTunes AppStore EULA allows an app to be paid for once and loaded on up to five devices (iPhones) under the purchasers control.  Do they take that into account?


“Pirated” software does not exist. Unlicensed copies do.

Quit trying to use shock words that the industry propaganda pushers teach you, please. smile

And you can’t lose money just because you never earned the money.

John Harrison


I’m not sure that I understand your questions but I’ll try to address them.

For one, it seems pretty clear to me that the first person to pirate my game actually used a promo code to do so.  This belief (which may be wrong) is based on the fact that the game was only pirated after I put codes on Promo Dispenser and then was pirated within hours.  So there was no initial sale.

As for getting credit for the popularity of the app, I don’t see how you could change the App Store to reflect the popularity of an app amongst pirates without causing many more problems than you solve.

Besides, I haven’t put in piracy detection mechanisms to see how often my game is actually played by pirates.  Those that have often report that the great majority of scores on leaderboards come from pirated copies.  And exactly 0% of those pirates convert into actual sales, so the try it before you buy it argument is a false one.

I’d also like to address some of the economic arguments being made in this thread.  I certainly don’t think that piracy necessarily directly represents lost sales, and I’m not making that argument.  But people claiming things such as:

Extensive pirating is a strong indication that the market does not respect the price at which the application is offered.

Don’t understand piracy very well.  Much piracy is irrational.  Some pirates are hoarders.  They grab a copy of everything they can even if they’ll never use it.

Others spend more on piracy than they ever would on legitimate copies.  This phenomenon is well known in the pay TV world where people will expend immense time and money in efforts to get “free” TV.

Certainly the App Store is imperfect and the rush to price everything at $0.99 has been damaging, but the pirate sites aren’t some sort of Robin Hood here to restore proper pricing to the ecosystem.  They’re running a for profit enterprise without any regard for those whose labor they benefiting from.


While I can understand Apple wanting to review iPhone apps that might do weird things on a cell carrier?s network, how can they justify reviewing iPod Touch apps?? What can an iPod Touch do on a WiFi network that you can?t already do with a Windows Mobile PDA device (or any laptop for that matter)?

It’s more than damage to the Cell network. They review Apps to make sure they won’t damage the device, that it won’t grab personal info and send it somewhere, that it won’t act like a bot and send out a flood of SPAM, there are a lot of things Apple checks for.


The [# pirated copies] x [Price] estimate is the most reasonable one to use when discussing this important issue.

For some reason, an entire generation (or two) seems to have convinced themselves that theft is okay. It’s as if stealing $20 from someone who had forgotten they had it is not stealing at all. It not only ignores the obvious fact that the thing isn’t yours, it pretends no consequences occur after the fact, such as that the forgotten $20 would have eventually been found or remembered, but not once stolen.

Similarly, there are consequences of app theft that go beyond the [presumed] loss of the income.

1) Some apps use off-device resources (such as servers and/or storage) that must also be paid for by purchase revenues

2) Pirates email for support people confidently insisting they be helped; support people who are also paid for by sales revenues

3) Pirated or otherwise ‘not-official’ software often has problems that official versions don’t; this not only generates unnecessary support work (for non-paying customers, no less), but can damage an app’s public image, as people complain about the issues without adding the caveat “But, I stole it in the first place”

The argument that “pirates wouldn’t have paid anyway” is obviously false; we can agree that once the apps hit the torrent sites, some people will use them that would not have otherwise, but I see no reason to believe this applies to a majority of pirated copies, and it clearly doesn’t apply to all of them. I can’t imagine someone jailbreaking their phone, invalidating their warranty, requesting, searching for and otherwise obtaining apps they wouldn’t just pay $0.99 for.

Finally, even if we say the number of pirated copies wouldn’t have been paid for otherwise, there are still costs that only each developer could properly assess. So, let’s assume the worst-case and say the loss equals the sales price.


What’s more important than the total number though is the rate. It’s been reported previously (by Landau and others) that with each update to the iPhone it’s getting harder and harder to jailbreak the iPhone and the percentage that are jailbroken is going down. If most of this is happening on older iPhones then the problem is self limiting as the number of those phones declines. Similarly, are most of the pirated apps current? An analyses could be done looking at the average age from day of publication of prated apps vs AppStore apps. It may very well be that most of the pirated apps are from the early period when more iPhones were getting jailbroken and more apps stolen. Once gain if that’s the case then the problem is a historical artifact but is lessening over time.



First of all, you are using loaded terms, and not legally correct ones for the actions you are deploring.

What you are experiencing is copyright infringement, NOT theft.  Theft takes something you own and prevents you from using it or selling it.  Thus, you have a hard number for your lost sales.

Copying a digital file isn’t stealing, because you essentially have an unlimited supply.  It IS copyright infringement, which, as been noted, prevents you from being able to put a hard accurate number on losses.  You have to guess.

1.  If you can identify copies that are not paid for that are using your server, you can find a way to prevent them from using those services.

2.  Ditto for this one, if you KNOW they are not legal copies, why do your support people provide them with that support?

3.  If you know these problems that are caused by unlicensed copies, put explanations into places on your support site where it will be seen.  More to the point, fix them where you can, because a working copy spreads the word about your app, and if it is well received, that will counter anything they could talk you down with.

Finally, go to Tech Dirt, where Mike has some really good essays on the subject of what he calls “infinite goods”, it’ll open your eyes on what your real market is and how you may be able to take advantage of it.


?Pirated? software does not exist. Unlicensed copies do.

Quit trying to use shock words that the industry propaganda pushers teach you, please. smile

And you can?t lose money just because you never earned the money.

Ryan: I am sorry to disappoint you, and to correct your error regarding “pirated software,” but “piracy” on the high seas is a huge problem for the software, music, and entertainment industries.

Just last month, two ships in a single day were seized by lawless pirates, each loaded to the brim with music, mp3’s, software algorithms, and high-quality digital renderings of recent block buster cinema.

Not only were the several million tonnes of music, cinema, and software seized and held for ransom, but the crews of the respective ships were also taken hostage putting them at extreme peril.

Subsequent to the piracy, the bits (e.g., 1’s and 0’s, or the underlying physical matter of which the music, software, and cinema are composed, refer to a periodic table if necessary) were reportedly offloaded from the ship, thus making it impossible for the respective owners to ever sell those products again; or at least until the 1’s and 0’s are reclaimed, reconstituted, and returned to the ships so that they may be digitally distributed.

Please do not pretend for a moment that these digital distribution companies are not subject to piracy on the high seas when it is a very modern dilemma, despite being an age old tactic.

In support, I cite the following routers news article, confirming that indeed two ships were seized, though I have kindly filled in several missing details:



I’m still curious about HOW iPhone/iPod Touch software is being pirated, aka stolen. Is it being shared between people on peer to peer networks, on CDs, flash drives? What is the mechanism for stealing the software to begin with? If it’s not on the App Store, it’s technically not legal for the devices anyway. If it’s waiting for approval, then either it’s the developers’ employees giving away unapproved, unlicensed copies, or somebody at Apple. And I doubt it’s the latter.

So, what is this piracy? Or is this just the buzz word being bandied about because it sounds good? It would be one thing if you could BUMP a copy from one iPhone to another, but even with jailbroken phones, I don’t think that’s possible.

And basing these numbers on an assumed similar rate of loss for traditional software that is calculated from a small sample number really makes this whole claim suspect from the get go. I’m not saying it’s not a problem, I’m saying the original author of the article (which was elsewhere, not here on TMO, had some seriously deficient reporting skills.



Well said. But we disagree about the word theft. If you make an illegal copy of my ‘bits,’ you have committed copyright infringement and perhaps broken some other laws. But, as I pointed out, the use of those ‘bits’ will often cause other losses that most certainly deprive me of money or resources.

Yes, there are protection mechanisms for some of the issues—software licensing. Once again, I point out that these incur additional cost (to develop and deploy), and may add a minor headache to the user experience, but add no value to the product; they are, once again, an expense of dealing with piracy.

About support: The organization I work for has several fairly accurate means of tracking legal vs. illegal usage. Numbers often run as high as 50/50. But, we have no [easy, painless] way of identifying the writer of a single support email as being a genuine customer or not, and we chose not to answer each such request with something akin to “Please prove you are a genuine customer before we answer…”

Finally, I am aware of many business models that take advantage of—even depend upon—the software underground. But, I thought this article was more about the many who use a simple “I’ll write it, you buy it” model and who were likely losing money as a result of piracy.


randomcommentguy had the best point by far


“...the use of those ?bits? will often cause other losses that most certainly deprive me of money or resources.”

Fair enough, for these losses, one can argue the word theft.  But the copied software is not stolen, and using that word is enflaming the argument and skewing the facts.

I am not a developer, so I cannot sit in your shoes.  I understand, though, that having people use unlicensed copies to increase the burden of hits to your servers and support personnel must bear a cost.  So a cost benefit analysis must be done to determine how to proceed, based upon that cost vs. trying to limit the losses through technical means.

So far, understood.

But my point is that Mike has some very good material that can help you with understanding your situation better, as his explanation of this matter is that you are experiencing a business model crisis, and you can alter how you do business to deal with it.  In other words, use the exposure to your advantage instead of fighting it.

For instance, many apps, mostly games, but some others,use the new app store ability to allow users to buy additional material in the form of unlocked features, game items, etc., inside the game, thus multiplying the possible market.  I would assume that this could either allow some form of gateway to allow only licensed copies to access, or better yet, make those features so desirable that even the unlicensed users will want to buy.

So far, just decrying the fact of copyright infringement does nothing to help you.  Altering your business model as Mike suggests may allow you to actually do something to alleviate your losses and connect with more users in a positive way.

Like he says a lot, treating your customers like criminals (even if they are) doesn’t help your public relations.  Giving them reasons to buy does.

Lee Dronick

Does it matter if you are facing a Judge in court for shoplifting software or possessing an unlicensed copy? Perhaps the latter does not yet mean criminal court. I don’t know and am just thinking about the difference between the two acts, perhaps our friend Nemo can clarify it for us.


Theft is a criminal act that is prosecuted by the State.  It can get you multiple years in prison, plus fines and/or restitution.  Plus a record.

Copyright infringement is not criminal, and must be pursued by the injured party.  It holds monetary fines as a punishment, with no jail time and no record as a felon.

(This is about individual infringement, not infringement through distribution, which IS criminal in nature.)

Thus, the burden of enforcement is on the injured copyright owner.

So the difference is a major one.

Calling it theft is intended, by the music labels, the movie studios and other interested parties, as a way to make it seem more like a criminal act, something that justifies their over-the-top activities in suing their customers.  If people understood it as a civil violation, it would be much harder to demonize it.


Considering that unlicensed iPhone apps can only run on jailbroken iPhones, no sane estimate of lost revenue should be greater than the percentage of jailbroken iPhones (less than 10% by estimates I was able to find), multiplied by the percentage of jailbreakers who are pirates (probably less than 100%) multiplied by the percentage of apps that pirates would have been likely to purchase had they not been able to get unlicensed copies, which is probably less than 100%.

Making very generous estimates would give us the following:

piracy rate of 10% (generous estimate of jailbreakers) * 90% (estimate of jailbreakers who are pirates) * 50% (generous estimate of apps which pirates would be willing to pay full price for if they couldn’t get unlicensed copies) = 4.5% piracy rate, or 95.5% license-compliance.

Basically iPhone developers are complaining about (at worst) a 95+% rate of license compliance! This is unheard of in the software industry (except perhaps with console games, which are similarly difficult to pirate.)

Even estimating a 100% jailbreaker-pirate ratio and 100% reformed pirate payment rate still leads to a 90+% paid license rate.


does it matter if you are facing a Judge in court for shoplifting software or possessing an unlicensed copy?

Criminal liability, which is prosecuted by a sovereign entity, only applies if you:

a) wear an eye patch whilst actually using the unlicensed copy; or

b) cause physical damage to the packaging for a physically embodied software medium (e.g., a CD rom) with a peg leg or if your parrot causes the same.

Otherwise, liability will be limited to civil claims only.

Excuse my jest, but given the silliness of the $450 million dollar claim, I am striving to maintain the same level of insanity.

Lee Dronick

Criminal liability, which is prosecuted by a sovereign entity, only applies if you:

a) wear an eye patch whilst actually using the unlicensed copy

Back in the old days, when VHS tapes waves ruled the waves, I remember seeing a comedy skit on TV. Video pirates captured a galleon and found treasure chests filled with tapes. The pirates took the chests back to their hideout and made illegal copies of the the tapes while laughing at the FBI warning.

John Harrison


You math is not an upper bound in any way.  You assume that pirates consume software at the same rate as paying customers.  When over 90% of the players of some games are pirates how is your estimate defensible?

I readily admit that a copyright infringement does not necessarily represent a lost sale, but you have to admit that when hard numbers from developers show that your estimates are upside down then clearly your math is wrong.


Video Pirates!!!!


Seriously though, it’s hard to stomach the makers of mediocre apps for a closed, consumer-hostile device, apps which are rented out anyway, apps which apparently have spyware in them to phone home on whether or not it thinks you paid.

Apps are rented because they don’t come with source code and/or any guarantee that they’ll work at any point in the future. Apps are rented in the same way your iPhone or Mac, or Windows is rented.

Why would anyone in their right mind want to shell out real money for a temporary license to run binary-only software for a limited time?

Lee Dronick

Thanks for the link to Video Pirates! which is the skit I had in mind. I had forgot that it was part of Amazon Women on the Moon which is a fun movie, catch it if you can.

John Harrison


I have real respect for people that refuse to use non-Free software.  Such people also look down upon piracy as well.  If we are going to call “piracy” copyright infringement then it is roughly the moral equivalent of a GPL violation, which is something that Free software users rally against regularly.

Thus supporters of Free software should in no way be cheering piracy.

People have legitimate reasons to use Free software.  I respect that.  People have legitimate reasons to pay for software both Free and non-Free.  Trying to use copyleft arguments to support piracy is just silliness. If you’re opposed to non-Free software you shouldn’t have an iPhone to begin with, jailbroken or otherwise.

Also, the reason that people know piracy rates for their apps is that people that are using cracked versions of the software are posting their scores to online leader boards.  So it isn’t as if the software is secretly phoning home.  The pirates are actively using server resources that have been provided for paying users.


John Harrison:

I agree that if you don’t find the terms of use acceptable, you have a right not to buy the program with the offensive EULA, or to use them.

At no time have I advocated unlicensed software copying, which you comically refer to with the shock term “piracy”.

You still have to tell me sometime why the punishment for unlicensed copies of 1’s and 0’s should involve being lynched, walking the plank, or being executed by flintlock pistol shot to the back of the head.

You want to hijack words that don’t apply to what you’re trying to apply them to. I realize that billion dollar companies who don’t like unlicensed 1’s and 0’s have paid to have the dictionary rewritten and corrupted to add shock value to their public disinformation crusade. smile


These are the forms of piracy as recognized by US law. So which kind costs Apple developers money?


# ? 1651. Piracy under law of nations
# ? 1652. Citizens as pirates
# ? 1653. Aliens as pirates
# ? 1654. Arming or serving on privateers
# ? 1655. Assault on commander as piracy
# ? 1656. Conversion or surrender of vessel
# ? 1657. Corruption of seamen and confederating with pirates
# ? 1658. Plunder of distressed vessel
# ? 1659. Attack to plunder vessel
# ? 1660. Receipt of pirate property
# ? 1661. Robbery ashore



excuse me but attacking the language is a poor substitute for reasoned debate. People have called copyright violation “piracy” for many decades, so it’s settled in the language. Theft is also used, not in its narrow legal sense, but in it’s broader moral sense.

Is it a loaded term? You bet. Like “death tax” vs “Estate tax” or “right to life” vs “right to choose”

And you accuse “the music labels, the movie studios and other interested parties” in over-using the loaded word “theft” and “pirate.” That seemed like a good argument with those entities are far removed from ourselves. But guess what? Here on TMO you’ll find creative people who take full advantage of the copyright laws to make a living.

We have artists and authors and even iPhone OS developers. All of whom are losing money because of copyright infringement.

You say that they are not losing because these infringers would not purchase anyway. It’s an easy thing to say when you’re not feeling ripped off by your copyright abusing users. Then you’ll get religion.


“Theft is also used, not in its narrow legal sense, but in it?s broader moral sense.”

Even in its moral sense, it’s wrong.  Theft is TAKING something from someone, making that something unavailable for their use.  Copyright infringement doesn’t TAKE anything, and whether it deprives the holder of that copyright a sale is debatable.  So there IS NO THEFT.

Is copyright infringement wrong? YES.  Is it illegal?  YES.

Is it a prosecutable offense?  NO.

The use of those terms is an attempt to inflame the level of the debate, and to try to get lawmakers to inflate the level of the consequences.  I don’t care how it has entered the language, that can change, if enough people want it to.

I understand that people feel ripped off.  But if you’ll go to the site Tech Dirt, you can read how this entire issue is not an issue of theft, but an issue of business model.  If you have an issue of people copying your stuff, then find a way to make them WANT to buy.  It is within your power, and others have made it work for them.

Bosco (Brad Hutchings)

@rwahrens Amen brother. Any software developer who is spending 0.01% of their energy bemoaning the fact that some percentage of users violate their wishes as expressed in the SLA are spending 0.00998% too much energy on bemoaning. During my 20 year career, I spent the first half in a state of excessive bemoaning. Whether it was pirates or the emerging freetard movement, I reactively saw their interests as completely opposed to mine.

It takes a real mindset change to bring your software business model in line with what the market is actually out there doing, and a lot of software developers are just stubborn. The stubbornness is one of those things that makes their product so good, but it makes their business model garbage and puts them at war with people who really love their product.

If you want a cookie cutter business model that will put you on track it goes like this. Give enough of your product away for free that people will want to install it for free on their computers or devices. Make them want to keep you around. Be useful at no charge. Have premium features that will sell themselves when regular users of the free features run into a need. Don’t be a dick and don’t ever hold people hostage. Have a simple server call-home for activating premium features. Have a reasonable price. If your product is great, you’ll be ahead of 90% of the pack and ought to be able to find ways to get happy users to pay you.


I might add, after some reflection:

“excuse me but attacking the language is a poor substitute for reasoned debate.”

Why, when the other side is USING language to set the terms of the debate in their favor?  Attacking that tactic is a valid part of the debate.

“All of whom are losing money because of copyright infringement.”

Prove it.  There is no way you can, because there is no data that can help you do that.  The referenced article’s numbers are, as is usual in this debate, totally bogus, with nothing to back them up.

Again, alter your business model to give your customers a reason to buy.  iTunes allows you to charge for stuff from within the app.  You can use that to your advantage to make your money, while actually giving the basic app away.  No loss, because even the infringers have to use your servers while using your app, so they’ll have to pay for the privilege.  Free app, no infringers.  “Problem” solved.  That’s one way, and I thought of it in two minutes writing this post.  I am sure that paid employees taking their time and knowing how the apps work should well be able to do better.

Oh, and thanks, Bosco, I was writing my post while you were, and you nailed it.


John Harrison,

You are making a common error which I call “drowning in a lake that, on the average, is 2 inches deep.” Or, perhaps, confusing the implication: 90% of iPhone users are not pirates, but that doesn’t mean that 90% of the users for *each app* are not pirates. But perhaps I was unclear by using the phrase 90% “license compliance.” What I pointed out was that 90% of iPhone *users* necessarily comply with the licenses of the software that they use, not that 90% of all app installs are licensed -particularly for a single app.

Specifically, Apple’s DRM ensures that 90% or more of iPhone users - i.e. those who do not jailbreak their phones - use only licensed apps on those phones. That doesn’t mean, however, that certain games may have no paying users.

The fact that 90% or more of iPhone users are paying for their apps, because of the app-store enforced DRM, is unheard of in the traditional software business.

When you have such a huge potential market with guaranteed license compliance, and you find that you’re not making any money, it’s probably because you’re making a product that paying customers aren’t interested in purchasing. Instead, you’re making a product that appeals primarily to people who aren’t interested in purchasing your software - a nice way of getting users, but a poor way of making money.


Make that:

“That doesn’t mean, however, that certain games won’t have a large number of non-paying users.”


Another way of thinking about it is simply that 90% of iphone users are potential paying customers. If you’re not selling any copies of your app, it’s likely that either your customers don’t know about it, or that it does not provide a benefit to them such that they are willing to purchase it at the price you are charging.


I still believe that DRM only makes lost sales a self-fulfilling prophecy.

Most of the time, when they fail to sell me something, it’s not because I made an unlicensed copy, it’s because the legitimate paid-for version is too annoying to even bother with.

DRM is them begging me not to buy their products because I know there’s a good chance they won’t work and that I can’t get my money back.

DRM also drives unlicensed copying for that very reason.

Their sales going down is mostly a self-inflicted wound from choosing to attack their customers with unacceptable and offensive levels of DRM.

You can look back and see hypeTunes drop DRM, and then charge people to “purchase” the music they supposedly “bought” the first time. They also used the excuse that they had made their music slightly less defective as a pretext to upping the price 30%.

And that’s to say nothing of the hypeTunes movies and tv shows that are still DRM encumbered. Nor the fact that their programs are.

And if you want to talk PC, DRM on video games is the outright plague I described above. Thought the gaming industry will attribute the lost sales not to a defective product that installs malware, but to this magical term “piracy” that the industry has contrived for the purpose.


If the fact that stealing intellectual property is a civil, not criminal, offense helps you sleep better at night, more power to you…

Do the Math

The 24/7 article estimates the following:

3 billion apps downloaded, 21% (max) paid at an average price of $3 per app

[This gives us (or Apple) about $1.89 billion in revenue.]

75 million iPhone users
10% of those are jailbreakers
40% of jailbreakers are pirates

[This gives us 72 million honest users and 3 million pirates.]

The amount of money spent by the honest users is $1.89 billion / 72 million, or $26.25 per honest user.

The lost revenue due to piracy is estimated at $450 million, or $450 million / 3 million = $150 per pirate.

Thus, the 24/7 article is estimating that pirates - if they could be reformed - would spend $150, on average, at the app store, while honest users are currently only averaging $26.25.


Thus, the 24/7 article is estimating that pirates - if they could be reformed - would spend $150, on average, at the app store, while honest users are currently only averaging $26.25.

I’ve thought all along the $450 Mil figure was inflated.


If the fact that stealing intellectual property is a civil, not criminal, offense helps you sleep better at night, more power to you?

Nice diversion.

The FACT is, it isn’t stealing.  It IS illegal, and it CAN result in lost income, which is WHY it is illegal.

But the law is clear on which is what.

Piracy is an act of violence on the high seas, involving people with guns, kidnapping, theft, violent threats, even murder.  It is, in almost every country on earth, a felony.

Copyright infringement is not an act of violence, even though it can result in the loss of income.  That is why it is NOT a criminal offense, but a civil one that is only enforced by the courts upon a civil suit by the injured party.

There is nothing here that anybody in authority can do to stop the illegal online copying of digitized intellectual property such as music, software or video.  It is too widespread, and anyone that tries is playing a great game of whack-a-mole.  The reasons for it are cultural and economic, and only cultural or economic actions can alleviate the “problem”.

Continually bi*ching about it online cannot solve it, and redirecting the terms of the debate by misnaming it won’t stop it either. That’s only trying to blame your problem with a bad business model on someone else that’s not responsible for your failure to come up with a better way of doing business.

If you are a developer, take another hard look at your market, your product and your business model.  If you are creative enough to write a good program, you should be able to think of a good business model to go along with it so you can work with your customers instead of accusing them of being criminals.

And inflating figures to “prove” your case isn’t going to win anybody over to your side.


But you see @rwahrens, you’re part of the problem. I agree with you that the reasons for excessive copyright infringement is cultural and economic. It is you who are trying to water down the offense by attacking the language. Just because something cannot be stopped doesn’t mean we shouldn’t try.

That is unless you feel that its OK to let those offenses go on unchecked.

I think we can all agree that we can’t stop children from lying. Hey it’s not a criminal offense, it’s just lying. But yet we expend an immense amount of energy teaching children that lying is morally wrong. That the means do not justify the ends.

So why not with copyright infringement? Lets call it “theft” and/or “piracy” to indicate our objection to it’s practice. We don’t use the word “fib” much with our children because we know that “lie” is a much stronger word. We don’t often tell a child it’s morally wrong to take advantage of someone, we simply say you should not “cheat” someone.

So why do you take offense at calling copyright infringement theft? Why do you bristle at “piracy” when you agree that both are wrong. Wrong morally, and both illegal?

Perhaps it is because you don’t feel that copyright infringement is wrong all of the time? I haven’t read anywhere where you think people SHOULD copy and install iPhone apps that they did not pay for. But it sure seems like you’re willing to turn a blind eye to it.

All this talk about changing the business model has nothing to do with this debate. As a developer of both hardware and software I claim a copyright and protect my inventions with patents. I expect people to respect my rights under the law. I also have taken a page from Apple and I do not attempt any DRM or activation for my software products. I realize that there are those who will violate my copyright and if I find out, I will take measures, but I do not wish to inconvenience my legitimate users.

So even though my business model is “friendly” to those that wish to violate my copyright, I will go after the thieving pirates!

And I teach my children that even though its really easy to lie, cheat and copy digital representations of copyrighted material, they all are morally wrong and hurtful.

Bosco (Brad Hutchings)

I realize that there are those who will violate my copyright and if I find out, I will take measures, but I do not wish to inconvenience my legitimate users.

So even though my business model is ?friendly? to those that wish to violate my copyright, I will go after the thieving pirates!

Sorry. I’m calling bullshit. Please give us an example of who you went after, what you did, and what the outcome was. Most companies just can’t afford the legal process of enforcement.

I also find it hard to believe that you’re making money and not doing some kind of server based activation, but that’s another story. Trust me, I would love it if you weren’t actually pulling our chain.



No, you’re part of the problem, cause you’re trapped in a mental igloo unable to see what’s in front of your face.

I fight the usage of the wrong terms because words matter.  Word are powerful tools, and this is a perfect example of how they can be.  You would not be fighting so hard to keep using the wrong, loaded term if it didn’t do something for you.

“I will go after the thieving pirates!”

Perfect example, right there.  No, they are NOT thieving pirates.  They are copyright infringers.  Not as cute a term, but not loaded either.  They haven’t stolen anything of yours.  They COPIED something, but you still have all of the infinity of copies still left to sell, and likely they themselves wouldn’t have bought from you anyway, so what did you lose?  Nobody stuck a gun in your face, as a real pirate would.  Go ask that captain the Navy rescued last year and ask HIM about the real deal.  I’d bet you’d get an earful.  Call the cops and tell them you’ve got customers stealing your stuff, and they’ll refer you to a good copyright lawyer that’ll give you a precis on the difference.

And that word, “infinity” is the key here, because you are NOT selling scarce goods that can be stolen and thus unavailable for sale.  Go back to econ 101 and look at that graph of sales price and goods sold.  It CLEARLY shows that an infinite number of goods will sell at a price of zero.

Again, go to Tech Dirt http://techdirt.com/  Mike Masnick has a great number of posts about how all this works and what you can do to move forward without bitterness or losing money:


Both of these articles are very good outlines that will help show how this works.

Cheers, and good luck in figuring out a real modern business model.


“Perhaps it is because you don?t feel that copyright infringement is wrong all of the time?”

Although the above statement was not directed toward me, I DO INDEED think that copyright infringement is NOT WRONG all of the time.

The copyright laws are out of line with societal expectations, and they have now become so of line that a very large segment of society has lost respect for such laws.

A copy right term now extends well beyond 100 years and extends well beyond a term necessary to protect the author’s interests. Contrast this, if you will, with patent law, which now is entitled to only a 20 year term from the date of filing, of which approximately 2-4 years is spent prosecuting the patent. Contrast this again to trademark law, which requires that the mark in question be continually used, else it is lost to the public domain and available again to be used as a source identifier.

Copyright has become a joke. The law has been pushed too far beyond its constitutional mandate and now, society has lost respect for this area of the law. Worse yet for some copyright holders is that the courts are now becoming increasingly hostile toward copyright law and have been opening up many exceptions in the DMCA, and have been expanding the scope of applicability for fair use.

If you consider copyright law akin to a pendulum, then throughout the last century, the pendulum swung toward much stricter copyright laws and rights, but it seems to have peaked around the turn of the century, and for the past decade, the pendulum has been swinging back. The DMCA was the high point, and its been downhill from there.

So yes, I think that much of what is presently “copyright infringement” is acceptable from the viewpoint of much of society, and the laws will be forced to adapt to that new reality.


Perfect example, right there.? No, they are NOT thieving pirates.? They are copyright infringers.?

Enough is enough.
You are just not correct in your rejection of the word pirate and piracy for the theft of intellectual property. The application of the term goes back a through history:

For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : “Its being Printed again and again, by Pyrates”[2]). The practice of labeling the act of infringement as “piracy” actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, 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. Those who violated the charter were labeled pirates as early as 1603.[3]
The legal basis for this usage dates from the same era, and has been consistently applied until the present time.[4][5] Critics of the use of the term “piracy” to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity,[6] though courts often hold that under law the two terms are interchangeable.[7]”

So you can stop all the irrelevancy about how pirate is the wrong term. Illegally reproducing written works HAS been called piracy for nearly 400 years, the courts have upheld that use of the word and its pejorative connotation.


I cannot believe these tossers that are in here trying to argue that (Stealing, Theft, Piracy, Copyright Infringement), you can call it whatever floats your boat, is somehow ok, or should be tolerated or hurts nobody.

Please be sure to go to work and spend copious hours doing whatever your twisted brain is capable of and also be sure to give me the spoils of your labour.

If you are not willing to give away the money that you earn to a complete stranger or even better just don’t get paid for it, then please don’t even think about saying that this stealing, piracy or whatever you like is somehow ok.

Let me know when you are willing to work for nothing, because I’m sure I could make a nice business out of this.


Perhaps you should look beyond the incomplete resources of Wikipedia and just look at the law.

Title 17 of the US Code is the relevant section, and at no time in that section does it call infringement of copyright “piracy”.  Congress, in its political wisdom, influenced by the monied interests in copyright, has used the word “piracy” in TITLES of that and amending laws, but the law itself, by which the courts are guided, call it copyright infringement.

And that is enough for the word, but again, lets talk about the act itself.

First, to shut up those that want to twist my intent - I do NOT endorse breaking the law, and copyright infringement IS against the law, whatever you wish to call it, whether you intend to make one copy for your own use or redistribute it to a million people. The law is clear on that point.

But that act is NOT stealing.  Stealing is TAKING something and denying the owner its use by removing it from his/her possession.  Money, material things, stuff you can put in a container and remove to another location.

Copyright infringement (or piracy if you insist on using that term) is NOT taking a physical thing.  In online distribution by a manufacturer, he sells copies of his/her software.  If someone takes on of those copies and redistributes it to a buddy, that is not theft, it is an illegal copy, and while that MAY result in that buddy not buying his own copy, there is no generally agreed upon methodology to determine that likelihood, especially in the aggregate of large numbers of infringers.  So we don’t know that little detail.  But there are still an infinite number of copies that can still be made.  Nothing is stolen.

But at some level, yes, it CAN result in lost income, and that is why it is against the law.

Same thing with large scale infringement.  Distribute it via an online server or on CDs, it is infringement, and it is against the law because it results in a loss of income, however much the amount may be disputed.  Again, the law is clear.

But the law calls it infringement, not theft, because it is NOT theft.

Theft results in criminal prison time, and the only infringement that does is large scale counterfeiting.  An individual making a single copy will at most, get a civil fine upon a court action initiated by the owner of the copyright.

My point is also that as the owner of that copyright, you have certain things you can do when you see your stuff is being copied illegally.

You can just bitch about it.  Yeah, and that includes using loaded terms such as piracy.

You can go to court and sue whomever you can locate that has done the dirty deed.  (I hope you’ve got good lawyers and deep pockets)

Or you can do what Mike Masnick at TechDirt suggests and re-examine your business model and just make more money by stopping the copying through giving the masses a reason to buy your product.  (This one has the advantage of actually stopping the loss of income and earning you money instead of giving it to lawyers.  Your choice, of course.)


You can play with words here, but theft is theft. It is still the same thing in principle whether I take something from you that you have in your hand or something that is still being delivered to you. You are denying me the use of it.. That includes denying me the use of the physical money.

It is not a case of “CAN”... It is a case of “DOES” result in lost income, just as if you had taken it from my hand.

The law is always lagging and always will. That doesn’t change what it is. Every person that partakes in this activity knows full well that they are stealing someone elses work and depriving them of the physical money they are rightly due. Yes Physical money. BTW.. it is not physical sitting in the bank so I guess taking that would not be theft either.. Simply transferring the 1’s and 0’s right? Of course it is theft..

So maybe it is ok to take money from Mike Masnick’s bank account because he can just change his business model, so that it becomes part of his self promotion.


Okay, its time for a couple of clarifications.

1) Please do not develop business models that deprives Intellectual Property lawyers easy access to your money. That would be most unappreciated. Arguing about this stuff for free is fun, but getting paid to argue about it is so much better.

2) To clarify the comments above with respect to theft: Theft is a wrong against the state or against a sovereign entity. Copyright infringement is a civil wrong. Civil wrongs are committed all the time by companies to gain strategic advantage or to mitigate costs. From a legal perspective, it is important to understand your potential liability, and then make an informed decision as to whether or not to “infringe” the “rights of another.”

Furthermore, from a legal perspective, when you refer to “theft” you should be referring to “conversion” or “trespass to chattels,” since these are both civil wrongs. A “theft” is a wrong against the state, not a person, entity, or rights holder. Similarly, copyright infringement is a wrong against a person, entity, or rights holder, not a wrong against the state.

Thus, perhaps instead of suggesting that the “unauthorized” downloads are “theft,” you should argue that such is an act of “conversion” or “trespass to chattels,” given that these are also civil claims.

Now that does of course, bring us full circle to the simple fact that a copyright owner has been deprived of nothing in the physical sense. And thus, the circle continues.

I will send you a bill grin

You may take $25.00 off for each error, given that I do not proof read my unsolicited rants, of which, this is assuredly one.


“You can play with words here, but theft is theft.”

No, here, it is YOU that’s “playing” with words.  I have very clearly shown how copyright infringement is NOT theft.

Yes, in SOME cases, you MAY lose money, due to a lost sale, but since nothing is ever transferred to your bank account, nothing is stolen, even as ones and zeros.

You are approaching this from an obvious emotional position, and one can give some allowances, but you MUST understand that your assertion is wrong, both in a legal and an actual sense.

The money you MAY lose as the result of an illegally copied item is still not stolen, since it is never yours to begin with.  Whether you lose the sale because a potential customer simply decides not to buy it or because he/she has copied it illegally makes no difference; if the money is never transferred to you, it isn’t “converted” from your possession to someone else’s.  It is simply never yours to begin with.  And the transfer of that software to their computer illegally is a civil violation, and is not theft, which is a criminal violation.  Not the same.  You have not lost anything physical that you can then not sell, there are still an infinite number of copies left to sell.

Is a lost sale a loss of income to you?  Maybe, IF that person would have bought from you instead of illegally downloading the software, which is not a given, and you cannot prove.  If an illegal copier/infringer never intends to buy it in the first place, you’ve lost nothing.

Your problem is that there is no way for you to know for sure.  You can estimate, but that is no more accurate than the numbers in the article these comments are attached to, which are just made up crap.

Again, understand that I am not contending that the illegal copying is legal, or right.  It is neither.

But your problem is that you cannot stop it, the government cannot stop it and the HUGE numbers of people doing it won’t stop.

So again, what do you do?

You can bitch about, which you are doing, but to what affect?  Little to nothing, because the folks doing it will not be persuaded by your emotional arguments.

You can go to your Congressman, but why?  It is ALREADY illegal, and since most torrent servers are overseas, there is little they can do to stop it.  It is a big game of whack-a-mole, even if they tried.

YOU can alter your business model so that it no longer hurts you, though.  That is the ONLY thing here that is within your power and will solve your problem.  If your software is given away for free, but one must pay to use features contained therein (such as access to your servers or a database of info), then people can copy your software all day, and you will lose nothing, since they have to pay you to use it.

A simplistic example, but it is a simple example of what Mike is telling you, that you can alter your business model so that illegal copying doesn’t hurt, but can actually give you greater exposure and thus, PR.  Under that kind of business model, you may actually WANT people to spread it around!

That doesn’t change the legalities, but it is something YOU can do to stop your loss of income, which, being the bottom line, is what you are really worried about.


Surely the copyright owner has been deprived of the physical money due to them for your use under their terms.. They own that combination of 1’s and 0’s not the “pirate”.

OK, so by definition it is not theft if I take your car as you are not the state nor a sovereign entity (I assume you are not in any case). So the use of the word theft is wrong on all accounts. The legal wording aside, common usage would call this theft. As I said before the law is always lagging.. Remember killing was not murder until the legal wording said it was.. but the act was still the same.

It is ridiculous to assume that because it 1’s and 0’s that it has no physical form. Of course it does.. It not stored as a magnetized physical dot, is it not transferred as an electric oscillation, is it not stored as representation in the synapses of a brain. It is physical at every step.

If you say that there are infinite copies available, then you might also apply that thinking to that wooden chair in the dining room. As long as the trees keep growing, which can be infinitely replanted, there are in fact infinite copies to be had of that chair too.

It is a sad world when we say, let’s just roll over, stick your bum up in the air and say to pirates have “have your way with me”. Even better we’ll help you do it, by changing the way we do things to accommodate your despicable behavior.


“Surely the copyright owner has been deprived of the physical money due to them for your use under their terms.. “

No, they haven’t been.  It was never transferred to their bank account, so it wasn’t STOLEN.  Something never paid that is owed is not stolen.  It is simply an unpaid debt.

Again, look at the law.  Copyright infringement is a civil offense, which is remedied under a court case brought by the injured party.  If it were theft, it would be an offense against the State, which would be dealt with through formal prosecution by a State prosecutor.

Different animal altogether.

“If you say that there are infinite copies available, then you might also apply that thinking to that wooden chair in the dining room.”

Ok, now you’re just being obtuse.  It is not the same.  The law recognizes that.  NOTHING is taken from you, as a matter of fact, most illegally copied software is copied from a third party server, and would be much better thought of as being the same as a counterfeited item.  So if nothing is REMOVED from your server (and as a matter of fact, your server is not involved at all), then nothing is STOLEN.

Illegally copied, yes,  Stolen, no.

“It is a sad world when we say, let?s just roll over, stick your bum up in the air and say to pirates have ?have your way with me?. Even better we?ll help you do it, by changing the way we do things to accommodate your despicable behavior.”

Can’t you read?  Or do you just have trouble understanding plain English?

If you pull your damn pants up, you are not letting anybody “have their way” with you, and that is what I am talking about here, altering YOUR behavior to make yourself less vulnerable.  At that point, what THEY do is immaterial, since it won’t hurt you.  Not altering your business model to stop something that hurts your income is NOT smart, since it is telling the bad guys “just keep it up, it hurts so good!”  Bad business, dumb thinking.  It’s like not locking the back door when you know people are walking in and taking stuff.  You can bitch about them coming in all you want, but until YOU take action to make yourself less vulnerable to the bad actions of others, you are at fault for the losses.  Believe me, ANY insurance company would agree with my statement.

...and please, I have, over and over and over again, noted that I do not condone copyright infringement, that it is against the law.

I am merely trying to correct an egregious amount of disinformation brought about by the major copyright holding corporations trying to equate this issue with theft and piracy, which is nothing but ridiculous.


Copyright infringement is a civil offense, which is remedied under a court case brought by the injured party.

So, are you saying this is a lie?

“Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to 5 years in federal prison and a fine of $250,000.”

Get over yourself.  Copyright infringement IS theft.  The person making copies of a protected work is taking something without paying for it. That is the functional and moral definition of theft. And since the FBI warning refers to criminal copyright infringement, the law also recognizes copyright infringement as a crime, not just a civil violation.

No, they haven?t been.  It was never transferred to their bank account, so it wasn?t STOLEN.  Something never paid that is owed is not stolen.  It is simply an unpaid debt.

Try gain. If someone takes something they are supposed to pay for - even if the process of taking the unpaid-for item is by making a copy - that person is committing a theft. Your continued denial of this basic moral (and legal) fact is just painting you as someone who is trying to justify what they know to be wrong.


“So, are you saying this is a lie?”

No, I am saying that it refers to wholesale IP infringement, which is producing it for resale.  There is a reason that the RIAA sues its customers instead of referring them to local prosecutors.

Get over YOURself, you are wrong.  Read the damn law, it is clear.

And it is NOT theft, because it is covered under a Federal law that makes it a civil violation.

Again, note that an illegal copy is made, in almost every case, from third party servers.  I’ve never heard of anyone claiming that “pirates” were illegally copying stuff from their own servers.  It’s done from those “evil” torrent sites.

Thus, nothing is being taken from the manufacturer, but from a third party that is allowing it.  So it is more equatable to counterfeiting, which IS a criminal violation on the part of the third party.  It is not illegal to own or possess a counterfeit item as an individual if it is for your own use.  It IS illegal to make a copy of a digital work, but that act of copying does not equate to theft.

So yeah, if the torrents were located HERE in the US, the Feds could, and probably would, go after them with the FBI and all the weight of the law, which they should.  But they aren’t here, they’re located in places like Russia, which couldn’t care less for US law.

So only the individuals downloading them are here, and they are only committing civil violations which are not theft.

Again, note that I do not deny that copyright infringement denies manufacturers of software (and music and movies) some income.  That is why it is illegal, it does do damage to them.  But again, there is nothing to prove HOW MUCH is done, because nobody knows how many are lost sales.

Again, I am not justifying crap.  I am trying to make it clear that you are mischaracterizing this into a more serious violation than the law says it is.  It is still a violation of the law, and is illegal.


[You entire argument is bull.

The fact is the law clearly recognizes the concept of intellectual property. Do you KNOW what property is? Do you understand the entire reason behind making laws that recognize intellectual property and intellectual property rights? (No, you do not, or you would not be spouting your quazi-legal nonsense.)

Property rights includes the idea that people OWN property, and thereby have the right to control said property, including demanding compensation for the transfer of, or use of said property.  The laws which recognize, indeed define intellectual property recognize the fact that property ownership is NOT limited to physical objects.  Intellectual property laws confer ALL property rights on the non-concrete of intellectual property.

If someone uses the property of another person without permission and without compensation when the purpose of that property is to generate income through it’s use, they are committing a theft. It makes no difference if the property is insubstantial, like the computer code that makes up a user application, using it without permission and/or compensation (if compensation is expected) is functionally - and legally - no different that using a physical item, such as a rental shop’s lawn mower without permission or compensation. That is the reality of property rights laws, INCLUDING intellectual property.

Those who (correctly) define copyright infringement as theft are NOT “mischaracterizing this into a more serious violation”.  Quite the contrary, it is those who insist we NOT call theft what it is that are attempting to DIMINISH the seriousness of such violations. Now why would one want to do that?

The only place you are correct is it is nie impossible to to prove how much a person’s income is actually diminished through people violating their intellectual property rights. Then again, the argument that people using a piece of intellectual property would not necessarily pay for it if they could not illegally copy it is full of holes. The fact that they ARE using it indicates the desire for the product. If one desires a product but are not willing to pay for it, that is their choice to NOT use it.  People who are not wiling to pay, but use it anyway are thieves, pure and simple, and as such, illegal copies do directly represent the same monetary loss as if a store lost a truck full of merchandize to thieves. Lack of proof does NOT make theft less than it is, nor monetary damages elss than they are.  Criminals who steal are walking the streets everywhere because it is not possible to PROVE what they have done.  But lack of proof does NOT negate the fact that a theft has taken place.


I’ll tell you what, the US Code of Federal Regulations part 17 is the part that covers copyright and related matters.

If you can find ANY reference to theft resulting in criminal penalties for individuals illegally copying software, then you are more legally aware and should replace the idiots running the RIAA’s legal team that is suing their customers instead of simply letting the US Attorney prosecute them for theft, and you can claim some validity to your argument.

The fact that plenty of legal teams ON YOUR SIDE are behaving like I have noted tells me that you are on the wrong track, because they are doing what I said - resorting to legal remedies under the law that require the copyright holder to file suit.  If it WERE theft, they could just provide evidence to a US Attorney and they’d arrest ‘em.  That’s not happening.

I’ve searched it online and can find nothing that applies to individuals that refers to theft.  the body of the law doesn’t even use that word, nor any words similar in meaning.  The word piracy isn’t used, either.

I’ve written hundreds of words here, and nobody has posted anything to refute my arguments that has any basis in fact or law.  You certainly haven’t.

I sure as hell haven’t tried to argue that anything infringers are doing is right, quite the opposite.  It just doesn’t equate to theft.


These arguments are getting muddled ... but its pretty funny to see so many up in arms about the issue. Anyway, I wanted to clarify that a single act can be both a crime against the state and also a civil wrong. For example, you steel somebody’s car, and you have committed BOTH a criminal offense and a civil wrong. One is prosecuted by the state (criminal) and the other must be prosecuted by a person, entity, or rights holder having standing to bring the civil suit.

Thus, a “theft” can trigger both criminal and civil liability. Refer to, for example, OJ Simpson who was prosecuted unsuccessfully for murder, but then later found civilly liable for wrongful death. Each stemmed from the same act. The civil case has a lower standard of proof, which contributed to the difference in result.

In any case, “copyright infringement” can also be prosecuted criminally, and on rare occasion it is, but not to recoup money for the rights holder. It is prosecuted just like all crimes, to punish the wrong doer and create a deterrent effect for others.

Here is the applicable section of 17 USC. Note that there are other criminal provisions as well, for example, in the DMCA and elsewhere. None of these however are “theft” or “piracy” but that’s not all that important for the sake of the statute. Also note that this is a Federal statute, separate statutes likely exists in various states.
? 506. Criminal offenses

(a) Criminal Infringement. ?

(1) In general. ? Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed ?

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. ? For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. ? In this subsection, the term ?work being prepared for commercial distribution? means ?

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution ?

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture ?

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

(b)(b) Forfeiture, Destruction, and Restitution.?Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.

(c) Fraudulent Copyright Notice. ? Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. ? Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.

(e) False Representation. ? Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.

(f) Rights of Attribution and Integrity. ? Nothing in this section applies to infringement of the rights conferred by section 106A(a).


...and your entire quoted section is targeted at COMMERCIAL INFRINGEMENT.


“by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000;”

I’d guess that few torrented software packages total that much for a single copy.


“by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, “

Again, targeted at distributors, not individuals making single copies for their own use.

That is, once more, why the RIAA sues people themselves, because the law doesn’t target individuals as criminals.

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