September 24, 2018

Criminal Copyright

Copyright infringement did not become a criminal offense until over one hundred years after the passage of the first federal copyright act in 1790.  Until that time, the availability of damages under civil law was considered to be an adequate deterrent against copyright infringement.  In addition, nineteenth century technology made it very difficult, if not impossible to illegally reproduce and distribute a copyrighted work on a scale large enough to seriously threaten the copyright owner’s profits.  In short, criminal sanctions for copyright infringement were unnecessary in the past.  Since then, however, changes in technology, especially in the digitilization of copyrighted works, have made it easier to reproduce and distribute copyrighted works and more difficult for a copyright owner to protect his or her works.  In response to these concerns and in recognition of the increased value and importance of intellectual property to the economic well being of the United States, Congress has amended criminal copyright laws numerous times, and has progressively increased the scope and penalties for criminal copyright infringement.  An example of this is the No Electronic Theft Act of 1997.

A defendant is guilty of criminal copyright infringement under 18 U.S.C. section 2319 if the defendant acted willfully and either (1) for commercial advantage or private financial gain, or (2) by reproducing or distributing infringing copies of works with a total retail value of over $1,000 over a 180-day period, or (3) by distributing a “work being prepared for commercial distribution” by making it available on a publicly accessible computer network.  Copyright infringement is a felony only if the infringement involved reproduction or distribution of at least ten copies of copyrighted works worth more than $2,500 in a 180-day period, or involved distribution of a “work being prepared for commercial distribution” over a publicly-accessible computer network.

Chapter 2 of my book, Intellectual Property & Computer Crimes (Law Journal Press 2003) provides a detailed analysis of criminal copyright infringement under 18 U.S.C. section 2319 including a discussion of caselaw.  The book has been updated twice a year since first being published in 2003.