Civil v. Criminal Liability Under the Copyright Act

Photo by Markus Winkler

Ever pop in an old VHS tape or DVD and wonder what the prominent “FBI WARNING” before the movie is really talking about (if you didn’t fast forward or just skip past it)? These warnings are not just meant to deter potential bootleggers and pirates, for infringing copyrighted material can carry some serious consequences and make even the most private of cinephiles into a criminal. But does the government really act on these warnings? They sure do. And the bar for criminal copyright infringement liability is lower than you might think.

The Copyright Act provides a means for copyright holders to protect and enforce their rights in their original and creative works of authorship. Thus, photographers, musicians, filmmakers, and other artists nationwide have a means of ensuring third parties do not use, copy, or derive profit from their works. Often, enforcing these rights comes in the form of the rights holder bringing a civil lawsuit, alleging infringement under the Copyright Act (17 U.S.C. § 501). Less often, however, as promised in the “FBI WARNINGS” we have all come to know and recognize, the infringer can also be held criminally liable for infringing a copyright holder’s rights.

Criminal penalties for copyright infringement are generally the exception rather than the rule because they only apply in certain circumstances. Section 506 of the Copyright Act (17 U.S.C. § 506) provides that a person can be criminally prosecuted for infringing a copyright if the infringement was willful, and committed:

(A) for purposes of commercial advantage or private financial gain;

(B) 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

(C) 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.

17 U.S.C. § 506(a)(1). Copying or distributing a copyrighted work is not the only way an infringer can be held liable, however. Similar to the civil violations delineated in Section 201 of the Copyright Act (17 U.S.C. § 201), the Copyright Act also states that it is a crime for a person who intentionally and fraudulently: claims copyright registration in any article, publicly distributes or imports for public distribution any article with a false copyright notice, or removes or alters any valid notice of copyright from a copyrighted work. 17 U.S.C. § 506(c-d).

One can see that it doesn’t take much for a civil copyright infringement to enter into criminal territory, but it must be reiterated that criminal copyright liability hinges on whether or not the conduct was committed willfully. This typically requires that the alleged infringer received legal notice that his or her behavior was an infringement, but the infringer continued the allegedly infringing conduct anyway. The bar need not be so high in every circumstance, however, for a willful infringement can also be found if the alleged infringer actually knew that his or her conduct was illegal from the beginning.

Criminal copyright infringement is punishable in a variety of ways, depending on the infringing act:

• A first-time offender who is convicted of violating section 506(a)(1)(A) by making unauthorized reproductions or distributing at least 10 copies of one or more copyrighted works during any 180-day period with a retail value of over $2,500 can be imprisoned for up to five years and fined up to $250,000, or both. 18 U.S.C. § 2319(b)(1). Repeat offenses by previous infringers can result in an additional 10 year prison sentence, up to $250,000 in fines, or both. 18 U.S.C. § 2319(b)(2).

• A first-time offender who is convicted of violating section 506(a)(1)(B) by making unauthorized reproductions or distributing at least 10 copies of one or more copyrighted works with a total retail value of over $2,500 can be imprisoned for up to three years and fined up to $250,000, or both. 18 U.S.C. § 2319(c)(1). Repeat offenses by previous infringers can result in an additional six year prison sentence, up to $250,000 in fines, or both. 18 U.S.C. § 2319(c)(2).

• A first-time offender who is convicted of violating section 506(a)(1)(C) by taking a work that is being prepared for commercial distribution, and making that work available on a publicly-accessible computer network, can be imprisoned for up to three years (five years if the offense was committed for “purposes of commercial advantage or private financial gain”) and fined up to $250,000, or both. 18 U.S.C. § 2319(d)(1-2). Repeat offenses by previous infringers can result in an additional six year prison sentence (10 years if the offense was committed for “purposes of commercial advantage or private financial gain”), up to $250,000 in fines, or both. 18 U.S.C. § 2319(d)(3-4).

• Those found guilty of misdemeanors can be sentenced to up to one year in prison and fined a maximum of $100,000 (an infringed copyright must be registered with the U.S. Copyright Office in order to for an infringement to be considered a felony).

While criminal and civil defendants can both be ordered to pay monetary damages in copyright infringement cases, only criminal defendants can be incarcerated if found guilty. The potentially long prison sentences, hefty fees, and enhanced penalties for recidivists are all meant to deter criminal copyright infringement, and although the civil statute of limitations for copyright infringement is three years, a federal prosecutor has up to five years to bring a criminal case against an infringer.

The takeaway: the next time that fuzzy screen with the “FBI WARNING” pops up (even though you may own a physical copy of a movie that you purchased yourself), remember that you only have a license to use the movie for your own personal use, and that you could face serious consequences for copying and distributing that movie to others. A civil lawsuit for infringement is one thing—you wouldn’t want to be criminally prosecuted as well.

For more information on this article and this topic, contact Charles Wallace.