Last Updated on: 15th October 2023, 08:47 am

Federal Sentencing Guidelines For Criminal Copyright Cases

Copyright infringement can be a civil issue resolved between two private parties. But it becomes a criminal matter when the government gets involved because someone intentionally used or shared copyrighted material illegally for financial gain. The FBI now considers intellectual property theft a priority in its criminal investigations program[1][2][3][4].

If you’re being investigated or charged with criminal copyright infringement, you need experienced defense attorneys. This article explains what criminal copyright infringement is, what the government must prove, the possible penalties if convicted, and potential defenses.

What is Criminal Copyright Infringement?

Criminal copyright infringement violates federal law when someone deliberately uses or distributes another’s copyrighted material for financial benefit[5]. Copyrights protect the creator’s ideas and control their material for up to 70 years after death, or less if the author is a corporation. Protection covers writings, music, art, films, graphic designs, computer software, website content, architecture – anything recorded in physical form.

Facts, concepts, discoveries, and theories not written down aren’t protected by copyright. While most copyright disputes are civil cases between two private parties, the government can file criminal charges when the illegal use of copyrighted stuff is intentional.

What the Government Must Prove

To convict someone of criminal copyright infringement, the government must provide evidence of 4 things:

1. The author had a valid copyright
2. The defendant used, copied, or distributed the material without permission
3. It was done intentionally
4. It was for financial gain or business advantage

Felony vs. Misdemeanor Charges

Felony charges can be filed if 10+ copies of copyrighted material are reproduced or distributed with total retail value over $2,500. Misdemeanor charges apply to just 1 copy with retail value of $1,000 or more.

This is a very low bar for the government to pursue criminal charges. If you’re being investigated, get experienced defense lawyers immediately.

Penalties If Convicted

You can face severe penalties if convicted of criminal copyright infringement:

• Prison – Up to 10 years for a felony or 2nd offense; up to 5 years if 10+ copies or value over $2,500; up to 1 year for 1+ copies over $1,000. Sentences can increase with security bypass devices, leadership role, risk of harm, or weapons. May decrease for minimal participation.
• Fines – Up to $250,000 for 10+ copies or value over $2,500. Up to $500,000 if security controls bypassed. Up to $1,000,000 for subsequent offenses. Fines also for false copyright notices, unauthorized removal, and false application info.
• Restitution – Repayment of financial losses to the copyright owner from the violation.

Defenses Against Criminal Copyright Charges

There are several possible defenses to prove innocence:

• Fair use – Using a small part of copyrighted material for education, commentary, parody, or other transformative purposes is allowed.
• First sale – Reselling a lawfully obtained copy of copyrighted material is legal.
• Statute of limitations – Charges must be filed within 5 years of the alleged crime.
• Author permission – Written or verbal permission from the copyright holder is a defense.
• Lack of willful intent – If there’s no evidence you deliberately violated the copyright, charges should fail.
• De minimis – Using a very small, trivial amount of copyrighted material may not support criminal charges.

How Federal Sentencing Guidelines Impact Copyright Cases

If convicted of criminal copyright infringement, federal sentencing guidelines will impact the punishment imposed[1][2][3][4]. Here’s an overview of key factors:

• Base Offense Level – The sentencing guideline for copyright infringement, USSG §2B5.3, starts at level 8 (0-6 months prison). It goes up based on the retail value of the infringed works.
• Infringement Amount – The offense level increases as the retail value of infringed works goes up. For example, +2 levels if value was $6,500-$15,000, and +10 levels if value exceeded $550,000.
• Number of Infringing Items – The offense level can increase by 2 levels if the offense involved the manufacture, importation, or uploading of infringing items.
• Enhanced Penalties – Sentences can be increased if the offense involved counterfeit drugs, weapons, risk of harm, leadership role, distribution preparation, or obstruction of justice.
• Reduced Penalties – Sentences may be reduced for minimal participation in the offense.
• Downward Departures – Around 25-40% of copyright offenders receive below range sentences sponsored by prosecutors, with average reductions of 17-24 months. Judges also impose below range sentences not sponsored by prosecutors.

Finding the Best Defense Attorney for Your Case

If you are being investigated or charged with criminal copyright infringement, don’t go it alone. Hire experienced federal criminal defense lawyers to protect your rights. Look for attorneys with a proven track record of getting charges reduced or dismissed pre-trial, and negotiating below-guideline sentences if convicted.

The lawyers should thoroughly examine the evidence, look for weaknesses in the government’s case, advise you of possible defenses, and aggressively defend you in negotiations and court. Every case is different – make sure your lawyers craft an optimal defense strategy tailored to the unique facts of your situation.

With skilled attorneys on your side, you can avoid or minimize the severe penalties that can come with a criminal conviction for copyright infringement. Don’t take chances with your future – call federal criminal defense lawyers today.

References

[1] https://www.ussc.gov/research/quick-facts/copyright-and-trademark-infringement

[2] https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Copyright_FY15.pdf

[3] https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Copyright_FY17.pdf

[4] https://www.ussc.gov/topic/intellectual-property

[5] https://www.federallawyers.com/criminal-defense/federal-defense-lawyers/federal-sentencing-guidelines-for-copyright-cases/

Criminal Copyright Infringement