When the FBI Comes Calling…®
INTELLECTUAL PROPERTY (continued)
Criminal Infringement of Copyright
17 U.S.C. § 506 (2006).
In addition to the substantial civil damages available to those who have had their copyrights infringed, the federal government can bring criminal prosecutions. These used to be rare, but they are becoming far more common in the age of file-sharing.
The Crime
Any person who willfully infringes a copyright will be punished under 18 U.S.C. § 2319, if the infringement was committed--
- for purposes of commercial advantage or private financial gain;
- by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $ 1,000; or
- by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
Definition
In this subsection, the term "work being prepared for commercial distribution" means:
- a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution—
- the copyright owner has a reasonable expectation of commercial distribution; and
- the copies or phonorecords of the work have not been commercially distributed; or
- a motion picture, if, at the time of unauthorized distribution, the motion picture—
- has been made available for viewing in a motion picture exhibition facility; and
- has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.
The Punishment
18 U.S.C. § 2319 (2006).
Punishment for a violation of 17 U.S.C. § 506 is somewhat complicated.
If the person violated section 506 for the purposes of commercial advantage or private financial gain, the punishment will be as follows:
- if the offense consists of the reproduction or distribution—including by electronic means—during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500,
- imprisonment for up to five years, a fine, or both; or
- imprisonment for up to 10 years, a fine, or both, if the offense is a second or subsequent copyright infringement offense; or imprisonment for up to one year, a fine, or both, in any other case.
If the infringement was committed by the reproduction or distribution, including by electronic means—during any 180-day period—of 1 or more copies or phonorecords of 1 or more copyrighted works, having a total retail value of more than $1,000, the punishment will be as follows:
- if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more
- imprisonment for up to three years, a fine or both;
- imprisonment for up to six years, a fine, or both, if the offense is a second or subsequent copyright infringement offense; or
- imprisonment for up to one year, a fine, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
If the infringement was committed by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if the that person knew or should have known that the work was intended for commercial distribution, the punishment will be as follows:
- imprisonment for up to three years, a fine, or both;
- imprisonment for up to five years, a fine, or both, if the offense was committed for purposes of commercial advantage or private financial gain;
- imprisonment for up to six years, a fine, or both, if the offense is a second or subsequent offense; or
- imprisonment for up to 10 years, a fine, or both, if the offense is a second or subsequent offense committed for commercial advantage or private financial gain.