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In a recent discussion on another SE forum a user (@JAB) complained that "theft" was an inappropriate descriptor for software piracy. His exact statement was:

I've never found "stealing" to be an appropriate descriptor for software piracy (loss of potential profit versus loss of merchandise, etc.). Counterfeiting might be more accurate, though even that isn't really appropriate.

[emphasis added]

So, my question is: Is there a more appropriate term for this concept of "loss of potential profit" caused by copyright infringement (making unauthorized copies instead of buying the item) ?

UPDATE: When I started this question I tried to keep my personal biases out of the wording. The comments seem to indicate that might not have been a good idea. For my part I personally think "theft" and "stealing" are very appropriate, but I do think the question is a valid one despite my own bias.

Legalese aside, I was taught as a child that when you take something that is not yours that is stealing. As English speakers we have evolved a number of specialized words to give nuance to the types of stealing possible. Consider the following (these are crude definitions for example only so please don't nitpick): embezzlement essentially is stealing from inside a company; shoplifting is stealing from a retailer by stealth during business hours, burglary is stealing by stealth when the owner is away, robbery is stealing by use of violence against other people, carjacking is stealing of a ground vehicle by robbery, hijacking is stealing of a air or water vehicle by robbery, conversion is stealing something you were entrusted with, etc.

Now we have "software piracy" and the question is: is piracy just another synonym for "stealing"/"theft" or is there a better word to define what is happening?

If theft is "taking something that does not belong to you", does the fact that the item is intangible make it UN-takable (as suggested by one of the comments below)? Is there a different word for "taking" an intangible?

Also, what exactly is stolen when software piracy occurs? Is it just the binary ones & zeros in the file? Is it the lost potential sale? What about the owner's rights (copyrights, intellectual property), are they being "taken" away from him/her? All of the above?

Please note: I am not particularly interested in the moral or legal issues, just the linguistic issue of looking for the right descriptive words. However I realize that the moral and legal issues will need to be raised in order to find the right word(s).

PS: There is an enlightening little essay written in the user comments to a blog post I ran across a few years ago (see "The Box and the Software"). It's a little lengthy but the the last few paragraphs about "the box" are very much on topic to this discussion.

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    a "shortfall" is the failure to meet a goal or a requirement, the amount of such a failure or a deficiency. However, sales shortfall doesn't necessarily implies fraudulent actions.
    – Graffito
    Sep 13, 2016 at 17:04
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    @Lawrence: Just like in the comment above, loss of potential profit can happen in totally legitimate ways. When Alice decides to buy a Charlie's product instead of Bob's, that is a loss of potential profit for Bob, but has nothing to do with "software piracy". When Alice decides to buy nothing at all, even that is a loss of potential profit. And, eventually, even when Alice copies Bob's product without authorization, if Alice could not possibly have paid for Bob's product, then it is not a loss of potential profit ...
    – O. R. Mapper
    Sep 13, 2016 at 18:36
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    Even if the software’s rightful owner didn’t lose a single sale or a single dime of profit because of piracy (ie, none of the purchasers of the bootleg copies could have/would have purchased authorized ones [just ignore losses from “brand dilution" for a moment]), each bootleg sale would generate “ill-gotten gains” for the bootlegger, so maybe looking for verbs usually associated with “generating ill-gotten gains” would give you and JAB something to ponder (but don’t be surprised if even that angle leads back to “stealing and theft”!).
    – Papa Poule
    Sep 13, 2016 at 22:49
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    @O.R.Mapper That would be a good way for O.M.Y. (the OP) to clarify the question. It changes the question significantly, though, making the requested term refer to the 'pirate' rather than the vendor. E.g. illicit gain. To bring the discussion back to the vendor might require concepts related to copyright or intellectual property, rather than money per se. The title, though, seems to require answers to stay close to the idea of profit.
    – Lawrence
    Sep 14, 2016 at 0:41
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    @Lawrence ... Good to hear because it looks like its going to be another long workday (as in I won't be online). Thanks for the feedback. :)
    – O.M.Y.
    Sep 14, 2016 at 14:44

5 Answers 5

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The legal term seems to be primarily lost sales. - Wikipedia

Lost sales, also referred to as lost revenue, income or profit, is a term used in the context of Internet piracy to refer to sales that did not occur because potential customers have chosen not to buy a product but to obtain it from an illegal source for a lower cost or for no cost. Figures for lost sales usually assume that consumers who use pirated content would always choose to purchase the product at the market rate, if the illegal sources were not available.

It seems that lost sales is the most common in legalese to enforce the argument that each pirated copy is a lost sale.

Representatives of the content industry such as BSA have argued that every pirated copy is a lost sale. - Same Wiki

Furthermore this term is on a steep rise since the 1960s - Ngram - which is no wonder considering the forerunner of internet piracy - the cassette deck - being introduced in the sixties.

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    Here is an interesting rebuttal of the BSA principle "every pirated copy is a lost sale": boingboing.net/2015/12/22/pirate-bay-cofounder-invents-a.html
    – Federico Poloni
    Sep 14, 2016 at 18:43
  • The legal term isn't the important thing here; it is true that sales are often lost due to people who choose to pirate rather than purchase legally, but as pointed out by others it is also true that there will be people who pirate due to not having access to legal methods of obtaining the product (or who would otherwise not have obtained the product anyway if piracy was not available). That sort of nuance is what makes me feel that "theft" and the like aren't really accurate for the process.
    – JAB
    Sep 16, 2016 at 2:25
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You are asking for an English term (not necessarily legalese) that identifies the specific kind of theft caused by software piracy.

With the many types of software licensing available today including those related to open source software, there are many potential scenarios to consider. To simplify matters, I will focus on just one:

  • a vendor creates software, expending (in a generalised sense) time, money, creativity, etc;

  • the vendor makes the software available for some consideration (money, barter, fame, etc); and

  • a software pirate acquires a copy of the software without providing consideration.

On the pirate's end, it is irrelevant whether they would have paid for or used the software had they been unsuccessful in acquiring the pirated copy.

On the vendor's end, it is irrelevant whether preventing the piracy would have led to a benefit (e.g. being paid) or loss (e.g. from reduced publicity).

What is relevant is that the pirate has violated the copyright of the vendor.

This type of 'theft' has been termed cheating:

Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due. - Attorney-General for Australia, Statement to the Australian Senate

Cheat verb 1.1 [with object] Gain an advantage over or deprive of something by using unfair or deceitful methods; defraud - ODO

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    Very interesting answer. It certainly offers a new insight on a way to look at piracy that I have never heard before. Thank you @Lawrence.
    – O.M.Y.
    Sep 16, 2016 at 1:31
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Short answer: For terminology in current use, lost profits (or lost sales) may be the best phrase available, as described by Helmar. For accurate and precise terminology, I don't think that there is a word more appropriate than theft at this time.

I don't know if there is currently a single term that describes the whole process well. I don't like lost sales or lost profits, because although they are common (particularly among industries affected by this kind of piracy) they aren't necessarily accurate. You might enjoy a computer game you can get for free while also being unwilling to pay $X to obtain it legally. If $X is the current price, then you would never make the purchase and so there is no sale (or subsequent profit) to lose. That doesn't make the pirate innocent, of course.

I don't see theft as more or less accurate than lost profits or lost sales, even though we know that there is no physical property being taken. After all, if you purchase a computer game and receive it via download rather than a physical disc, no one would argue that you've purchased nothing.

This is a situation where I think that a new word should be coined or an existing word should gain an explicit, additional usage. Current terminology seems inadequate to describing exactly what literally happens in software piracy. Lost sales and lost profits gain currency not because they describe piracy well but because they are maximally favorable to companies that need to define how they are harmed, and so that is how they choose to describe piracy.

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  • Based upon this answer, I do not quite understand why you reject lost sales, but support lost profits. Clearly, "you would never make the purchase and so there is no sale to lose" seems to imply that there is no profit to lose, either.
    – O. R. Mapper
    Sep 13, 2016 at 18:45
  • My apologies, I had meant to use just one term, and did not mean to use both terms interchangeably. However, I have the same issues with both phrasings: I do not think that either lost profits or lost sales is appropriate. I have edited my response accordingly.
    – Upper_Case
    Sep 13, 2016 at 18:48
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    I'm not sure I agree. It's odd with computer code, but if you buy software as above, then a copy is produced on the spot and transmitted to you. No stocks were depleted, but one more copy of the code exists and you "have" it. By the same token, if you pirate software you generate a new copy (illegally) and then "have" it. Copies are taken, but because they are produced on demand there is never a need for standing storage. If instances of code aren't property in a "theft-able" sense, perhaps the real crimes are unauthorized production, possession, and distribution.
    – Upper_Case
    Sep 13, 2016 at 19:17
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    Would potential lost sales or lost sales potential address you concerns about lost sales?
    – Richard Kayser
    Sep 14, 2016 at 3:23
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    In a colloquial setting, maybe. It still frames things in terms of the nature of the harm to a second party rather than the actions undertaken by the actor, which I think is less than ideal (you can commit theft, but committing 'potential loss of profits' seems lacking to me). The entire lost sales framing is one of practical convenience for groups most harmed by software piracy, and its descriptive ability has been (and will probably remain) a non-factor.
    – Upper_Case
    Sep 14, 2016 at 13:03
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The closest analog analogue I can think of is sneaking into a show of some sort, assuming that the sneak-er is not physically taking a seat from a paying customer. When this is prosecuted, it may be charged as theft of services.

Children peeking into circus tent (Source)

In both cases:

  1. The people who created, own, and sell the service (show/software) may or may not be losing potential profits (depending on whether the sneak-ers ever would have bought a ticket/software license);
  2. Paying customers are still getting the same product/service as if there were no sneaking; and
  3. The sneak-ers are illicitly getting something for free that they ought to have bought.

Unfortunately, there is no special archaic legal term for sneaking into a circus that I can find (perhaps someone else knows of one). However, there was a recent case of an Indiana couple being charged with a felony for sneaking into a movie; in that case, the crime was apparently called theft of services. This is a fairly common legal infraction in the US, which may be a misdemeanor or felony depending on the value of the services and the specific jurisdiction (see USLegal.com for further details).

Wikipedia defines theft of services as

a crime which is committed when a person obtains valuable services — as opposed to goods — by deception, force, threat or other unlawful means, i.e., without lawfully compensating the provider for these services.

If we think about the value of the software as coming from the effort of the programmers, marketers, etc. rather than from the actual string of code, it's easier to see software as a service in the same way that a movie screening is, apparently, a service.

However, while theft of services has apparently been used for everything from the above-mentioned unpaid-movie-watching to unauthorized cell phone charging to unpaid bills, I can't find much evidence that it has actually been used to prosecute software pirates. A couple of law review article do equate piracy and theft of services in the context of home satellite dish signal theft (34 How. L.J. 243, 243 (1991), 20 Cardozo Arts & Ent LJ 277, 283 (2002)), and at least two others mention it in the context of broader electronic piracy (12 UCLA Ent. L. Rev. 63, 78 (2004) and 16 Va. J.L. & Tech. 116, 150 (2011)). But it seems that, in general, the affected industries have preferred to look for new legislation rather than enforcing existing statutes (which may have fairly small penalties).

Note that other crimes besides theft of services might also apply, depending on circumstances. In the case of the theater-sneak, but not software piracy, trespassing might be charged; fraud might come up in either case depending on how the sneaking/piracy was accomplished; someone who facilitates the sneaking (e.g. by opening the back theater door or by "cracking" software for someone) might be guilty of conspiracy or other crimes, etc.

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  • It seems strange that the Indiana couple was charged with a felony rather than a misdemeanor. Did they have previous infractions?
    – JAB
    Sep 16, 2016 at 2:29
  • @JAB I don't know any more than what's in the news stories on the web; it seems strange to me, too. It must mean that Indiana doesn't strictly define the misdemeanor vs felony distinction based on the value of the service, unless the cut-off line for felonies is remarkably low.
    – 1006a
    Sep 16, 2016 at 21:28
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You certainly can "appropriate" an intangible such as software; this would also include exceeding the terms of a software license. The phrase "wrongful appropriation" would cover software piracy.

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