Criminal Copyright Infringement
We help people fight criminal copyright infringement charges
What is criminal copyright infringement? Criminal copyright infringement is a violation of federal law when a person intentionally uses or distributes another’s copyrighted material for financial gain.
Copyrights protect the author’s ideas and controls their material up to 70 years after their death, or less if the author is a corporation. The protection covers writing, music, artistic works, and digitally stored material including books, songs, poetry, art, films, graphic designs, computer software, website content, and architecture.
Copyright does not protect facts, ideas, discoveries, concepts, or theories that are not written down in physical form.
While most copyright infringement is between two private parties (a civil matter), it can rise to criminal charges when the government takes action because the illegal use or sharing of copyright material is done on purpose. The FBI has recently made ‘intellectual property’ theft a priority of its criminal investigative program.
What are criminal copyright infringement charges?
To prove criminal copyright infringement charges, the government must produce evidence of 4 things: (1) the author had a valid copyright; (2) the defendant used, copied, or distributed the material without the author’s permission; (3) it was done on purpose; and (4) it was done for personal financial gain or business advantage.
Felony charges can be filed when 10 copies of a copyrighted work are reproduced or distributed with a retail value of more than $2,500. Misdemeanor charges can be filed with just 1 copy and retail value of $1,000. This is a very low threshold for the government to pursue criminal copyright infringement charges and why you should hire experienced defense attorneys.
Potential penalties and sentences for criminal copyright infringement
You can face severe penalties if convicted of criminal copyright infringement including:
Prison – You can be sentenced up to 10 years for a felony conviction or for 2nd offenses; up to 5 years if the offense involves 10 copies or value greater than $2,500; or up to 1 year when 1 or more copies has a retail value greater than $1,000. Under the federal sentencing guidelines, sentences can be increased when infringement involves devices that bypass security (e.g. video game copiers), defendant plays a leadership role in the offense, risk of death or serious injury, or possession of a dangerous weapon. Sentences may be reduced if participation is minimal.
Fines – You can be fined $250,000 for a first offense involving 10 copies or value greater than $2500. Fines increase to $500,000 when the offense involves bypassing security controls and $1,000,000 if it is a subsequent offense. You can also be fined for using a false copyright notice, for removing a copyright, and for false representations on a copyright application.
Restitution – You may be required to repay financial losses to the artist as a result of your copyright violation.
Possible defenses against criminal charges
There are several possible defenses to prove your innocence:
- Fair Use Exception – Even though you may intrude on a copyright there are situations when it can be done without the owner’s permission. Use is allowed without the owner’s permission when it is limited and “transforms” the original work for comment, criticism, or parody. This defense looks at the purpose of your work and is more likely considered fair use if you transform the original work into something new rather than simply make copies. It also is fair use with smaller quantities of material and if it does not harm the retail market for the original work.
- Independent Creation – You do not infringe on a copyright if you created your work without knowing about the copyrighted material. To win on this defense, you must prove there was no way for you to be aware of the copyrighted work before you created your own work.
- First Sale – This is a narrow defense that applies only to a specific copy of the original work. Once the artist sells the original work, copyright law no longer protects that particular copy. The new owner can dispose, destroy, rent, sell, or give away their copy since the artist no longer controls its rights. This defense applies only to the new owner and does not apply to a person in possession of the material. This defense does not apply to computer program rental, sound recording rental or destruction of art that meets the Visual Artists Rights Act requirements (ex. signed by the artist, limited editions). It does apply to goods made lawfully overseas and imported to the US.
- Statute of limitation – Charges for criminal copyright infringement must be made within three years of the crime. If the government waits too long to file a suit, it may not be valid.
- Permission – You cannot be charged for criminal copyright infringement if the author gives you permission to use or distribute the material. It also does not apply to small amounts of permissible copying (photo copies).
- Public Domain – Documents that are in the “public domain” are not subject to copyright laws. This includes materials where the copyright has expired, the owner has failed to renew the copyright, or the owner places the material or ‘dedicates’ it to the public domain.
- Jurisdiction – There may be no valid claim if the copyright is not properly registered by the artist.
Current trends and recent developments (updated)
The Copyright Office is making it easier to obtain a copyright on batches of blog entries social media posts, and short online articles with a single application and modest fees. Now online posts can have copyright protection.
Amid the COVID-19 pandemic, the Internet Archive made digital versions of books more available, prompting publishers to file suit for copyright violations.
Chinese theft of US technology is a big problem but there are no international copyright laws. Each country gets to decide how to handle violations. Under a new trade agreement between the United States and China, both countries agree to pursue infringement on e-commerce platforms. In the US, sites that do not take steps to prevent copyright violations could see the government revoke their licenses to operate. If relations with China sour, either country could withdraw from the deal.
The FBI is teaming with online marketplaces, payment providers and advertisers to gather evidence and prosecute criminal copyright violators.
The Supreme Court is set to hear the case of Google v. Oracle in October 2020 to decide if Google violated an Oracle copyright when building its Android operating system. The Circuit Court denied Google’s use of Fair Use as a defense since they simply copied the code and did not “transform” it for their use. Depending on which way the case is decided could lead to less innovation or more costly software in the future.
The Supreme Court recently decided that states are not liable for copyright violations since they were given immunity in the Copyright Remedy Clarification Act of 1990 (CRCA).
Can we help you?
Our firm has successfully represented clients charged with criminal copyright infringement. We have helped clients win “not guilty” verdicts or reduce offenses from felony to misdemeanor.
Read about our firm’s success in federal criminal cases.
To learn what happens in a federal criminal case, watch our federal crimes video.
If you want to know how to get the lowest possible sentence in federal court, watch our video on the Federal Sentencing Guidelines.