The ECA® would like to recognize and thank the law students at the Brooklyn Law Incubator & Policy Clinic at Brooklyn Law School for all of their input and support of this program.

Abandonware – Software that is no longer sold or supported, or whose copyright ownership may be unclear. It has in effect been abandoned, and thus it is called “abandonware,” which encompasses many types of old software, many of which are no longer sold to consumers. While the term typically applies to older entertainment software titles, other classes of software are sometimes described as such.  

Wikipedia classifies and defines the term “abandonware” by the following categories:

• Commercial software unsupported but still owned by a viable company - The availability of the software depends on the company's attitude toward the software. In many cases, the company that owns the software rights may not be the one that created it, or may not recognize, or realize, their ownership. Some rights holders do not make old versions available for free use and do not permit people to copy the software.   


• Commercial software owned by a company no longer in business - Often, no entity defends the copyright if such software is put onto abandonware websites, but this is not always the case. Despite claims by websites that the software has been “abandoned,” please note that downloading of software is still a violation of copyright laws, both downloaders and websites who host the software may be pursued for violation of intellectual property laws.


• Shareware / Freeware whose author still makes it available - Some websites collect and offer for download old versions of shareware, freeware, and (in some cases) commercial applications. In some cases these sites had to remove past versions of software, particularly if the company producing that software still maintains it, or if later software releases introduce Digital Rights Management, whereby old versions could be viewed as DRM circumvention.


• Unsupported or unmaintained shareware - Finding historical versions may be possible, but very difficult.


• Open source and freeware programs that have been abandoned - In some cases, source code remains available, which can prove a historical artifact.  

Auction Site - An auction site is a website where an item can be purchased through an online bidding process. The most popular version of this type of website is eBay. Some examples of auction sites are Alibaba, eBay, iOffer, and Amazon. Software piracy, content piracy, and trademark infringement is rampant on these sites.

Authentication - Authentication is the verification of a digital identity, such as someone’s log in information. The sender being authenticated, often referred to as the principal, may be a person using a computer, a computer itself or a computer program.  Such authentication processes are integral to Digital Rights Management (DRM).

Chat Room – A chat room is defined as any technology ranging from real-time online chat over instant messaging (examples being MSN, AOL, GChat, etc.) and online forums to fully immersive graphical social environments (examples being World of Warcraft, Star Wars Galaxies, etc.).   Some chat rooms are open to entire groups of people at once.

Copyright – A copyright is an exclusive set of rights granted to authors or rights holders to copy, adapt, distribute, rent, publicly perform, and publicly display their works of authorship, such as video games, literary works, databases, musical works, sound recordings, photographs and other still images, and motion pictures and other audiovisual works.

Copy - A copy, as that term is used in copyright law, is any material object, other than phonorecords, in which a work is embodied in a fixed medium by any current or future method, and from which the work can be perceived either directly or with the aid of a machine or device.

Counterfeit – A counterfeit is an imitation that is made with the intent to deceptively represent its content. In short, it’s a fake that is made to look like the real thing.  The act of counterfeiting applies to the production process for which goods manufactured to look like the original.

Crack – A crack is a software file designed to illegally circumvent copyright protection features in software.

Digital Rights Management (DRM) - DRM refers to physical or digital technologies used by rights holders in an attempt to protect their works from theft, or to put controls on other uses of their works, such as imposing licensing terms.  Examples of DRM include:

• Apple FairPlay:  Used by Apple to ensure that certain files purchased in iTunes can only be played on Apple supported products.


• Microsoft 3-Play:  Used by the Zune to ensure that transferred files can only be listened to three times.


• VHS Macrovision:  Degrades the video quality of a tape when it is copied from one VHS to another.


• DVD Region Codes:  Used by DVD manufacturers to ensure that DVDs produced in one country cannot be played on equipment from another country.


• DRM-X:  Used by Windows Media, Real Media, Flash Media, and PDF documents to prevent copying.

Direct Download – A direct download is a hyperlink which refers to an online location where the user may download a file.  In a direct download, the software is stored at a single location (server) or across multiple servers working in tandem.

Distribution – With regard to distributing software, in terms of copyright law, the concept refers to the exclusive right of the rights holder to transfer, trade, rent, lease, sell, or lend material from one entity to another.

File Transfer Protocol (FTP) - FTP is a network protocol used to transfer data from one computer to another over the Internet. FTP domains are accessed by their IP address directly. An FTP program allows a user to upload files to and download files from a site.

First Party Developer / Publisher – In the entertainment software industry, a first party publisher or developer is the party that not only makes the video game console, but also publishes software for the video game console in-house.  For example, Sony, Nintendo, and Microsoft are first party developers.

Freeware – Freeware is computer software, such as a video game demo, that is available for use without cost, or at an optional fee to the user.  Some licenses allow for the reproduction and distribution of freeware as long as it is not for profit and with the condition that any adaptations must also be designated as freeware. That means that you cannot take freeware, modify or extend it, and then sell it as commercial or shareware software.

Implied License - The term implied license refers to the permission to use a copyrighted work that is implied as a result of some act or conduct on the part of the rights holder. An implied license is a binding contract between the parties (user and rights holder) which is agreed to as a result of their conduct, rather than an overt expression of agreement. The determination depends on the circumstances of use of the copyrighted material. For example, many online publications include a “print” button, which, in the absence of any terms and conditions, implies that the reader has a license to print a copy of the article.

Infringement – In the context of entertainment software, an infringement refers to the violation of any of the exclusive rights provided to the rights holder by copyright, trademark or patent.

Intellectual Property (IP) – Intellectual Property refers to property rights over creations of the mind, both artistic and commercial. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets.

IRC (Internet Relay Chat) – IRC is a form of real-time messaging between users that is designed for either individual or group communications. Files, information and data may be transferred between users. IRC is used extensively by pirates. Professional and amateur pirates alike gather on servers set up to use IRC protocols and create chat rooms on various networks around the world. IRC allows for large-scale distribution of pirated software and/or content to end-users.

License - A license is a contract in which a party with proper authority (the "licensor") grants permission for another party (the "licensee") to do something that would otherwise be prohibited. For example, someone who owns a copyrighted work might grant a license to someone to use that work once in a specified way.  There are different types of licenses, including but not limited to:

• Licenses for Users:
  • Collective Licenses - A license that covers a collection of publications and content for a variety of purposes under a single license.
  
  
  • End User License Agreement (EULA) – When software is purchased, software publishers include a contract, which are presented to a user, usually during the installation procedure or in paper format with the shrink-wrapped software case containing the product.  The user has the choice of accepting or rejecting the agreement.  Many times consumers agree with the contract without reading it. The installation of the software is conditional on the user clicking a button labeled "ACCEPT” or some variation. 
    
    Many EULAs assert extensive liability limitations. Most commonly, a EULA will state that the licensor is not responsible for any damage that the software does to the user’s computer, especially if the user is using the software illegitimately. Some EULAs dictate the terms and conditions that a licensee must follow when bringing legal action against the licensor.
  
  
  • Passive Assent Agreement - Agreements that apply as soon as the user accesses the content.  In the case of a EULA placed inside software casing that doesn’t need to be signed, a user consents to the agreement by simply using the software.
  
  
• Licenses for the Number of Users:
  • Concurrent User License – A license in which a predetermined number of employees at a licensee’s organization may access the content at any given time.
  
  
  • Group License – A group license is a license that allows more than one user to access content at the same time. These licenses are generally used over a network.
  
  
  • Individual License - A license permitting only one individual to access the content at a given time.
  
  
  • Perpetual License - Licenses that allow indefinite access to the software or content, so long as it is used in accordance with the license.
  
  
  • Site/Campus Licenses - A license that limits access to software or content by geographic area(s), building(s), department(s), or organization(s).
  
  
  • True-Up License - A license in which the number of users covered by the license is adjusted to reflect the fact that the actual (or true) number of users during the term of the license was greater than the number of users outlined in the license at the beginning of the term.
  
  
  • User Base License - License in which all employees of a company can access software or content at the same time under one license.
  
  
• Licenses for Buyers:
  • Active Consent Agreement - Agreements requiring the user to affirmatively indicate that they consent to the rights and restrictions of the license before accessing the content.
  
  
  • Browse-Wrap Agreement - An agreement that typically consists of a link or button on a webpage that directs an end user to the terms and provision of the agreement. The terms and provision of the agreement are typically displayed on a separate webpage.
  
  
  • Click-Wrap Agreement - An agreement that typically consists of the terms and provisions of the agreement displayed on a webpage with a button stating “I Agree.”  You cannot use the software until you click “I Agree.”
  
  
  • Implied License - Agreement based on a parties’ conduct, instead of any written instrument. For example, many online publications include a “print” button, which, in the absence of any terms and conditions, implies that the reader has a license to print a copy of the article.
  
  
  • Shrink-Wrap License - Licenses that are accepted by the consumer upon opening the product. The term describes the shrink-wrap plastic wrapping used to encase boxes containing the licensed software. The license terms can be viewed on the packaging before opening the shrink-wrap.
  
  
  • Subscriber License - A license that limits the amount of time that a licensee has access to content.

Licensee - A licensee is an entity, such as the consumer or business, which acquires permission to use the licensor’s software, subject to the terms and conditions imposed by the license agreement. Generally, a licensee obtains no ownership rights in the copy of the content that he or she receives.

Licensor - A licensor is an entity that grants permission to another party to use his or her software. In the video game industry, the publisher is considered to be the licensor.

Patent - A patent consists of exclusive rights granted by a government to an inventor or authorized representative for a period of time in exchange for a disclosure of an invention.  A patent authorizes the rights holder to practice, make, use or sell the invention cited in the patent.

Peer-to-Peer Network (P2P) – A P2P network links users interconnected directly through their own computers to hubs, which relays requests and distributes content among every user on the network. P2P networks work without the use of a centralized server.  P2P includes programs and networks such as: BitTorrent, DirectConnect, eDonkey, Gnutella, LimeWire, and others. 

BitTorrent – Peer-to-Peer network BitTorrent is one of the most popular and effective file sharing protocols used for distributing large amounts of data. It allows the user to download files quickly by allowing other users to distribute parts of the file at the same time. BitTorrent has legitimate uses.  However it also has illegitimate uses, such as the unauthorized distribution of copyrighted works.

Torrent - A torrent is the type of file needed by a BitTorrent client to download content, such as a video game, movie, book, music, etc. The torrent will contain data on the original location of the file (the “seeder”); the computer which controls Internet traffic between computers trying to download the file (the “tracker”); and users who download the file (“peers”).

Torrent website - Torrent files are usually found on websites which archive many thousands of active files and allow users to search for movies, music, software, games, etc. by name.  Many torrent websites are involved in the unauthorized distribution of copyrighted works. 

Piracy - The illegal manufacture, copy, selling or distributing of intellectual property, such as video games, without the expressed consent of the rights holder, such as a video game publisher.

Public Domain – Under intellectual property laws, public domain is an undefined area of materials that is available for use by anyone without the restrictions of intellectual property rights.  In the video game industry, most of the works that are created are restricted for unlimited use, but protected by copyright, for a period of time. At the point that the copyright expires, the work enters the public domain.

Role Playing Game (RPG) – Relating to video games, a role playing game is a game where the user assumes the role or persona of a fictional or fantasy character, with the emphasis on the development of that character.  There are many different types of RPGs, including:

• Single-Player Games - Most computer video or adventure games have a token character which the player is controlling. However, a game is sometimes called "role-playing" if the character can make choices that affect the experience, items, and other improvements that the character can gain over multiple sessions.


• Massively Multiplayer Online Role Playing Game (MMORPG) - An MMORPG user may interact with other users in an online environment.  Most MMORPGs are subscription based and require a computer capable of playing games, as well as a high speed Internet connection.  On any moderately popular game, there could be hundreds, if not thousands, of people online with whom to interact. Players can log on and log off at their convenience.  World of Warcraft is the best example of an MMORPG.

Reproduction – A reproduction is the recreation of a product or piece of software.  An authorized reproduction is the exclusive right granted by the owner of a copyright to make copies of his or her work. An unauthorized reproduction, sometimes referred to as a “copy” or “pirate version,” is when a product or piece of software is made without the permission of the rights holder.  In terms of software, reproduction can mean the reproduction of the software code itself, a visual representation of the program on your computer screen, or a piece of that program, like a character.

Rights Holder – The owner or authorized representative who has any of the exclusive rights comprised in a copyright, patent, and/or trademark is the rights holder.  The rights holder does not have to be the author of the work.

Sharehosting - Sharehosting is a file-hosting service offered by storage websites designed to provide digital space for files and software. Most sites of this nature provide a domain address, or URL, to its users who can then access the file at any point in time. Because of their ease of use, as well as the anonymous nature of the site, pirates use sharehosting websites to store movies, music, games, and other types of content.

Shareware - Shareware is a type of software where the copyright holders allow purchasers to make and distribute copies of the software (you can share it!), but demand that if, after testing the software, you adopt it for use, you must pay for it.

Social Networking Platform – Social networks build online communities who share interests, or who are interested in exploring the interests and activities of others. In this context, social network services are online, and provide a variety of ways for users to interact, such as e-mail, instant messaging, and offer features of sending and receiving files and data.  Examples of social networking sites are MySpace, Facebook and Twitter.

Softloading - Purchasing a single user license and loading it onto multiple computers or a server.  Unless authorized by the rights holder, such action is deemed to be a form of copyright infringement, and may be punishable under the respective country’s copyright laws for damages.

Software Piracy – This form of piracy involves the unauthorized copying, distribution or use of software without permission from the rights holder. Forms of software piracy include:

• Purchasing a single user license and loading it onto multiple computers or a server ("softloading");


• Making, distributing and/or selling copies that appear to be from an authorized source ("counterfeiting");


• Offering for use at a fee, known as “renting software,” without permission from the rights holder;


• Distributing and/or selling software that has been separated or “unbundled,” from the products with which it was intended to have been;  and


• Downloading copyrighted software from the Internet without permission from the copyright holder.

Software as a Service – Otherwise known as “SasS,” Software as a Service is a model of software deployment whereby a rights holder licenses an application, such as a game or business software application, to customers for use as a service on demand, rather than having to purchase a separate software license for each device that uses the software Vendors of SaaS may host the application on their own websites, or offer the application to the consumer device for download, disabling it after use or after the on-demand contract expires.

Statutory Damages – Statutory damages refers to a threshold level of damages that are provided for by law, regardless of the actual harm caused by a violation of intellectual property rights. Plaintiff may only elect to receive statutory damages in place of actual damages.  Under United States copyright law, statutory damages range from $750 to $150,000 for each copyrighted work. It is at the discretion of the courts to determine the amount of such damages. 

Subscriber Agreement – A subscriber agreement allows clients to access content, such as video games, movies, music, books, etc., subject to various restrictions. Such an agreement does not allow for the republishing or distribution of the content, without authorization provided by the rights holder.

Third Party Developer / Publisher - A third-party publisher or developer is an independent business, such as a game development studio or hardware manufacturer, that is not tied to the primary product that a consumer is using, such as a video game console or computer. However, third party developers may enter into agreements to publish software exclusively for a particular video game console, or have or other business relationships with a particular manufacturer while maintaining independence.  Activision Publishing, Inc., Blizzard Entertainment and Electronic Arts are examples of third party publishers. 

Trademark - A trademark is any word, name, symbol, or device, or any combination thereof, which a rights holder uses to identify and distinguish their goods them from those manufactured or sold by others.

Trademark Dilution - Trademark dilution is when an entity creates and uses a trademark that is so similar to a registered trademark that it weakens or reduces the distinctive quality of that trademark, regardless of the amount of actual confusion. 

Trademark Infringement – A trademark infringement is a violation of the rights attaching to a trademark without the authorization of the trademark owner or any licensees.  Infringement may occur when one party, the "infringer", uses a trademark that is identical or confusingly similar to a trademark owned by another party who is offering similar goods and services.

Unbundling – Unbundling is the removal of software, such as a video game, that was originally intended to be sold or distributed as a part of a larger group of software, and reselling the product as a stand-alone product.

URL - The term URL is an acronym for “uniform resource locator.” It is the address of a website and tells the client software – namely a web browser - where to locate a sought after file.

USENET (a.k.a. Newsgroups or NNTP) - Newsgroups are electronic bulletin board services that allow users to post content through either attachments or posts on the newsgroup. Larger files are often broken down into 50 or smaller file attachments, which are then reassembled to create the full file.

Warez (“wah-rez”) – Pirated software, movies, music and general digital content is commonly referred to as warez. Websites offering warez for sale or free download usually contain illegal material, viruses and potentially other illicit material and should be avoided and reported to the rights holder and / or a member of law enforcement.