The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) defines “pirated copyright goods” as “any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.” In the digital world, use of a copyrighted work is not possible without at least making transient copies in the memory of the device you are using to manipulate the work. If these copies are made without the consent of the right holder, the persons who make the copies are pirates.

A lot of people who pirate media, whether music, movies, or software, do so because the authorized versions of the media come with technical protection measures that control the access or use of the media. These technical protection measures come with the MP3s that are downloaded from iTunes and similar sites. These same technical protection measures are absent from music that exists on p2p and bit torrent networks, hence, people who download this music “illegally,” do so (at least some of them) because the music is more freely manipulated.

The terms of service for iTunes tells you what you may and may not do with a song, and if you try to do more that that, either the technical protection measure that comes with the song will not let you do so or you are in violation of the terms. This is why you cannot take tracks off of an iPod and put them on a computer other than the computer registered with iTunes, absent some third party program. Many people who pirate music do so because the music can be listened to anywhere, on any device, in any format, irrespective of any terms of use to the contrary.

A few years ago, if someone wanted to use music without the restriction of technical protection measures, they could purchase the CD and rip the music to their computer. Once ripped, the music could be freely manipulated because it lacked protection measures. Lately, store bought CDs have begun coming with technical protection measures some of which can wreak havoc on a computer.

Music, movies, and software purchased at stores can be used only in the way that the right holder to the media wants. Often music can be ripped or burned only once from a store bought CD. Movies in DVD format have always been encrypted and may not be played on a device not subject to an applicable license; this is why open-source applications like Linux can not legally play a DVD. Software now has protection measures that allow only a certain number of installations of a program, even if every installation is on the same computer. Pirated music, movies, and software do not come with these protection measures, and often the people who pirate simply want to avoid these measures, not necessarily the purchase price.

The record companies and distributors of MP3s have begun to realize that if the MP3s are protected too much, piracy will increase. This seems to be one of the reasons that distributors such as amazon.com are offering MP3s for download without technical protection measures. Purchasers who want to download music free of technical protection measures will have to pay slightly more to do so, but their use of the music will be unrestricted. These purchasers should have the same ability to buy music, movies, and software in stores without technical protection measures.

People may also pirate media if it is released piece mail; for example, when a movie is release in the UK well before it is released in the US, a person may download the movie for the sole purpose of being able to view it when the creators of the movie have first released it. Most movies that are released theatrically, are released in different geographic areas at different times.

Case in point, “Shaun of the Dead,” starring Simon Pegg. This movie came out in theaters in the UK well before it was released in the US. It was available in DVD format on eBay before it was released in the US. The fans who were willing to purchase the DVD, along with the shipping costs from the UK, needed to circumvent the technical protection measure that came with the DVD. By circumventing the technical protection measure to enable the DVD to play in US DVD players, the purchaser is a pirate and is liable under the DMCA. “Shaun of the Dead” is one of many examples of piracy perpetrated by fans of movies, rather than enemies of the entertainment industry.

The foregoing has been cited by both the music and motion picture industries as a reason to stop suing people who download. The industries have realized that the people who download are often their best fans and customers. People who download movies and music are often the first to see a movie or listen to a song. They are often the people who tell all of their friends about the movie or song, effectively reviewing it. And, depending on the statistics you look at, these people may be purchasing more media, rather than less, due to the effects of piracy.

A third reason that people seem to pirate is because an application that is “authorized,” will not allow the person to use the application, or the device on which it is installed, to its potential. This form of piracy has become known by the term “hacking.” People were very happy when the iPhone was first hacked in order to enable the phone to work on networks other than AT&T. The hacker who performed this feat was a pirate, however, and likely disturbed the exclusive contract that AT&T had with Apple.

But people like gadgets, and scoff it the idea that a gadget is not living up to its potential. So when a gadget is “locked” by a program that is installed on it, the user instinctively wants to unlock it. The notion of a content provider being able to decide what programs may or may not be installed on a device buttresses the instinct to hack.

Apple just pulled a soft core porn application for its iPhone. Despite popularity that was able to crash its servers, Apple spokesperson Tom Neumayr said that Apple will not distribute inappropriate content, including pornography. This raises the question, “Why does Apple get to decide what is and is not appropriate?” and the people who do not think that Apple should the discretion to decide, and also own an iPhone, may hack the iPhone to make sure that Apple has no more say in the matter as to what the phone may be used for.

For the same reasons that courts frown at the idea of inalienability of real property, they should begin to realize that intellectual property should be freely alienable and manipulated as well. As long as the piracy discussed herein takes place on non-commercial scales, it will likely lead to greater public knowledge, a more extensive public domain, remixing and creativity, and less stress on our legal system.

The alternative is that anyone who downloads because they love the media, is a pirate, and may be liable for millions of dollars in damages. The next generation of internet users, a large portion of which download illegally, do so with the knowledge that it is wrong. Children download music and know that doing so is illegal, but they don’t care. What type of example do we set when we tell them that something so ubiquitous is illegal? Do the children disregard other admonishments in the same way?