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We can help you battle criminal copyright infringement charges.

What law covers criminal copyright infringement?

The offense of criminal copyright infringement is an infraction of federal law.  This is the charge when a person intentionally uses or distributes another person or entity’s copyrighted material for monetary gain.

What is a Copyright?

Copyrights protect a creator’s ideas and control the covered material up to 70 years after they pass away.  The post-mortem period is shorter if the creator or author is a corporation. This legal protection covers music, writing, works of art, and digital material including e-books, songs, digital art, poetry, films, graphic designs, software, website content, and architecture.

Copyright protection does not cover any facts, ideas, concepts, discoveries, or theories that have not been written down in physical form.

Criminal Charges for Intellectual Property Theft

Generally, copyright infringement cases are between two private parties (a civil matter).   Sometimes it gets raised to criminal charges when the government gets involved because the illegal use or sharing of copyright material is perpetrated on purpose. Recently, the FBI has made ‘intellectual property’ theft a priority in their criminal investigative program.

What are charges of criminal copyright infringement?

The government needs to produce evidence of 4 things in order to demonstrate criminal copyright infringement charges:

(1) the author held a valid copyright;

(2) the accused utilized, copied, or distributed the material without the author’s consent;

(3) the infringement was on purpose; and

(4) the infringement was done for personal monetary gain or business advantage.

You could be subject to felony charges if you reproduce or distribute10 copies of a copyrighted work with a retail value of greater than $2,500. Misdemeanor charges can be filed for even just 1 copy with retail value of $1,000. The threshold for the government to pursue criminal copyright infringement charges is rather low. That’s why you should hire experience copyright infringement defense attorneys.

Potential Consequences of Criminal Copyright Infringement

Severe penalties are associated with a conviction on criminal copyright infringement charges including:

Incarceration – You can be sentenced to as much as 10 years for a felony conviction or for a second offense; or as much as 5 years if the offense involves 10 copies or a retail value of more than $2,500; or up to a year when 1 or more copy is involved and the retail value is greater than $1,000. According to the federal sentencing guidelines, a sentence can be increased in cases where the infringement involves a device that bypasses security features, such as video game bootleggers.  This can also happen when a defendant is found to have played a leadership role in the offense, or if risk of death or serious injury or possession of a dangerous weapon is involved. On the other hand, the sentence can be reduced if participation is minimal.

Possible Fines – You could get fined $250,000 for the first offense that involves 10 copies or carries a value greater than $2500. Potential fines can be as much as $500,000 in cases where the offense involves bypassing security controls and up to $1,000,000 if it is a subsequent offense. You could also get fined for using a fake copyright notice, removing a copyright and false representations on a copyright application.

Financial Restitution – You could be mandated to pay back financial losses to the artist as a result of your copyright infringement.

Recent Trends in Copyrighting

The Copyright Office is making it simpler to get a copyright on batches of blog entries, social media posts, and short online articles with a one page application and low fees. These days, online posts can b covered under copyright protection.

During the COVID-19 pandemic, the Internet Archive made digital versions of books more accessible, causing publishers to file suit for copyright violations.

International Copyright Infringement

Theft of US technology by Chinese perpetrators is a big problem but there no international copyright laws exist to protect US artists. Each country has the right to decide how they will handle violations. Under a recently enacted trade agreement between the United States and China, both nations agreed to pursue infringement on e-commerce platforms. In the US, sites that neglect to take steps to prevent copyright violations could find that the government revokes their licenses to operate. If at some point relations with China go bad, either country could renege on the deal.

Online Copyright Infringement Issues

The FBI is working together with online marketplaces, payment providers and advertisers to round up evidence and prosecute criminal copyright violators.

In October 2020, the Supreme Court heard oral arguments in the case of Google v. Oracle if Google violated an Oracle copyright when building its Android operating system. Although 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, the Supreme Court may not uphold. According to IP Watch Dog, Google has argued to the Supreme Court that the 11,500 lines of code in question are an idea.  Ideas cannot be copyrighted.  The lines of code in question are currently in use in 3 out of every 4 smartphones in the world, so the outcome of the case has huge implications for the future.

Potential Defenses Against Criminal Copyright Violation Charges

Fair Use – Although you may infringe on a copyright, there are situations when this can legally be done without the owner’s permission. Use is permitted without the owner’s permission when that use is limited and “transforms” the original work for comment, criticism, or parody. This defense examines the purpose of your work and is more likely considered to be fair use if you transform the original work into something unique rather than simply make copies. Fair use also applies to smaller quantities of material and if the infringement does not harm the retail market for the original work.

The Independent Creation Exemption –Infringement on a copyright has not taken place if you produced your work without knowing about the copyrighted material.  To succeed with this defense, you need to prove there was no way you could have known about the copyrighted work before you made yours.

First Sale – This defense is narrow.  It applies only to a specific copy of the original production. As soon as the artist sells the original work, the copyright laws no longer protect that particular copy. The new owner has a right to dispose of, destroy, sell, rent, or give their copy since the artist relinquished the rights in the first sale. This defense only applies to the new owner.  It also applies to goods produced lawfully overseas for import into the US.

The first sale exemption does not apply to an individual in possession of the material. This defense does not apply to rentals of computer programs or sound recordings, or destruction of art that meets the Visual Artists Rights Act provisions (ex. signed by the artist, limited editions).

The Permission Defense – One cannot get charged for criminal copyright infringement if the author granted permission for the use or distribution of the material. Copyright violation also does not apply to small quantities of permissible copying (photo copies).

The Statute of Limitation – Charges for criminal copyright infringement must be filed within three years of the offense; otherwise the suit may not be valid.

Considering Jurisdiction – It is possible that a copyright infringement claim is invalid.  If the copyright is not properly registered by the artist, this could be used as a defense.

Public Domain – Documents that are considered to be in the “public domain” are not subject to copyright legislation. This includes documents on which the copyright has expired, the owner neglected to renew the copyright, or the owner puts the material into or ‘dedicates’ it to the public domain.

There are numerous ways our lawyers can defend you against copyright infringement charges.  The key is a strong defense presented by attorneys with experience in this section of the law.  Call our offices today for your free consultation.

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