April 2004



            Most copyright litigation is civil in nature – a court finds that a defendant has infringed and orders her to pay either statutory damages or actual damages and profits.  There are also criminal copyright penalties, and Congress has shown recent interest in increasing these penalties.  Criminal copyright infringement exists to punish infringers who misappropriate copyrighted works in which an “author” invested time, creativity, energy and money to create but who lacks the means to prevent such infringement.

            Misdemeanors are less serious crimes, and criminal misdemeanor penalties have been a part of the copyright law since 1897.  Traditionally, available only if the infringement was willful and done for profit the misdemeanors involved unlawful performances and representation of copyrighted dramatic and musical compositions. So, the reproduction and distribution of copies of copyrighted works, even when undertaken for profit, was not a crime.  In the 1909 Copyright Act, criminal copyright infringement was expanded to cover all types of works and all types of activities.  It continued to be a misdemeanor offense with both willfulness and a financial motive required; the penalties included and imprisonment.

The 1976 Act revamped the criminal provisions by changing the “for profit” requirement to infringement conducted “willfully and for purposes of commercial advantage or private financial gain.”  This lowered the standard from requiring that the defendant profit from the infringement merely to an intent to profit or gain from the activity.  The Act retained the one-year in federal prison term but increased the fine from $1,000 in fines to up to $10,000 generally, and to $50,000 if the work infringed was a sound recording or motion picture.

In 1982 the criminal infringement provisions were amended to make certain types of first-time infringement punishable as felonies (more serous crimes), although most criminal infringements remained at the misdemeanor level in the statute.  The types of activities that were classified as felonies depended on the number of copies made or sold within a 180-day period.  Increased penalties of up to five years imprisonment and $250,000 in fines were available only if the infringement involved reproduction or distribution of motion pictures, audiovisual works and sound recordings.  Repeat offenders were subject to the maximum fines regardless of the number of copies or types of works involved.  All other offenses continued to be misdemeanors with maximum fines of $25,000 and one year imprisonment. 

The most recent amendment to criminal copyright infringement was the No Electronic Theft  Act of 1997 (NetAct) which made it a felony to reproduce or distribute copies of copyrighted works electronically regardless of whether the defendant had a profit motive.  Thus, it changed the 100-year standard regarding profit motive but retained the element of willfulness.  The ease of infringement on the Internet was the primary reason for criminalizing noncommercial infringement as well as recognition of other motivations a nonprofit defendant might have such as anti-copyright or anti-corporate sentiment, trying to make a name in the Internet world and wanting to be a cyber renegade.  So, the infringement must be either:  (1) for purposes of commercial advantage or private financial gain or (2) involve the reproduction or distribution of one or more copies of a work or works within a 180-day period with a total retail value of $1,000.   Commercial infringers are subject to higher penalties, however.  A commercially motivated infringer can receive up to a five-year federal prison term and $250,000 in fines; a noncommercial willful infringer is subject to up to a one-year prison term and $100,000 in fines.  The prison term maximum for repeat infringers is up to 10 years for commercially motivated ones and up to six years for noncommercial infringers. 

Copyright infringers may be sued both civilly and prosecuted criminally for the same infringing act.   In cases where the alleged infringer has few assets that a copyright owner might recover in a civil suit, the owner may seek to have the government prosecute the infringer as a criminal.  In addition to the different remedies and penalties, there are other differences between civil and criminal copyright suits, although the underlying infringing activity may be the same.   For example, the civil statute of limitations is three years; it is five years for a criminal prosecution.  The burden of proof for copyright infringement in a civil suit is “preponderance of the evidence” while it is “beyond a reasonable doubt” for criminal copyright infringement.  For civil remedies, it is the copyright owner who brings suits; for criminal penalties it is the federal prosecutor who litigates the case.

There are four essential elements required to prove felony copyright infringement:  (1) that a registered copyright exists, (2) that the defendant infringed by reproduction or distribution of the copyrighted work, (3) that the defendant acted willfully and (4) that the works infringed were at least 10 copies of one or more copyrighted works with a total value of $2,500 within a 180-day period.  Willfulness continues to be a very illusive concept, but the statute provides no definition.   Case law illustrates that certain type of evidence generally is relevant to prove that defendant’s conduct was willful.  For example, that the defendant had legal notice that conduct similar to his was infringement or that he had actual notice that his conduct was illegal.  However, under Section 506(a) of the Act, “evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.”

Section 506 also details other actions that may give rise to criminal misdemeanor charges.   These include:  (1) fraudulent placing of a copyright notice on a work, (2) fraudulent removal of a copyright notice and (3) knowingly making a false representation of a material fact in an application for copyright registration.

In 2003 two bills were introduced into Congress to enhance further the criminal provisions of the copyright law.   H.R. 2752, the Author, Consumer and Computer Protection and Security Act of 2003, would strengthen the criminal provisions generally and penalize file-trading in particular.   It would classify anyone who downloads even a single song for personal use as a felony copyright infringer.  S. 1932, the Artists Rights and Theft Prevention Act, would make it easier for prosecutors to convict individuals who put pre-released material, such as movies, software and songs, on the Internet.  Both bills would eliminate the 10 copies and $2,500 value requirements so that even a single act of such infringement would create liability for felony copyright infringement. 

These bills are extremely controversial, and Professor Eric Goldman of the Marquette University Law School, said of these attempts, “First, it is not acceptable to put average Americans at the peril of going to jail for doing everyday activities. Second, if the existing laws are not yielding the desired results, perhaps they were bad policy, in which case, making them tougher only compounds the initial policy failure.”[1]





[1]      Congress, the New Copyright Bully, c/net News.Com, Aug. 6, 2003,