There is just one federal offense related to copyright infringement. It includes infringing upon a trademark or copyright. The base offense level, when calculated by the sentencing algorithm, is 8.
Characteristics of the Offense
There are sentencing guidelines that vary depending on the severity of the offense.
If the infringement was between $2,000 and $5,000 in damages, the offense level increases by 1. If the number is larger than $5,000, you’ll need to use the Sentencing Table. When you find the range for the amount of the theft or damages, you’ll increase the offense by that range’s level.
If the criminal behavior involved distributing, reproducing, publishing, performing, or displaying work that had not yet been commercially distributed, the offense level increases by 2.
If the criminal behavior involved uploading, importing, or manufacturing items that infringed on copyright, then the level should be increased by 2. The same is true if the defendant received a conviction for trafficking using circumvention devices. If the offense isn’t yet at level 12, it should be increased to 12.
If the offense wasn’t committed for the sake of private financial gain or commercial advantages, 2 levels can be subtracted from the existing number. However, the offense cannot dip below an 8.
If the criminal behavior included the risk of injury or death, or it involved possession of dangerous weaponry, the offense level must increase by 2 levels. If it’s lower than 14, it must be increased to 14.
To understand this math, though, you need to understand how offense levels are calculated.
Base Offense Levels
Every federal crime is given a basic offense level. This is a way of assigning numerical values to the criminal justice system in an attempt to make the proceedings more even. The offense level for each crime was calculated by the Federal Sentencing Commission by taking into account different factors associated with the criminal behavior.
Once the basic crime has an offense level, there are additional guidelines stipulated regarding the circumstances of the crime. If a person did not appear to have greedy intent, the offense sometimes lowers. On the other hand, if they engaged in reckless endangerment or caused other people to suffer, the offense tends to be much higher.
Judges will consider the crime and the circumstances to calculate the exact offense level. They will then calculate the offense of your prior criminal convictions, if you have any. A lack of prior convictions is likely to lead to more lenient sentencing.
The Sentencing Table is the next piece used. This official table has the guidelines for fines and prison sentences based on offense levels. The different ranges are shown in months. Judges used to be legally bound to pass sentences within those boundaries, but they have been able to use their discretion since a Supreme Court ruling in 2005.
Other Considered Factors
Judges can take other factors into consideration when making their choice. They may choose to impose a more lenient sentence if a defendant is apologetic and prepared to make restitution. On the other hand, if a defendant caused considerable harm and appears remorseless about it, they may increase the sentence.
In cases of copyright infringement, the judge will consider the circumstances. They will consider whether the defendant intended harm to come to the original copyright owner. They will consider whether the defendant seems to have learned their lesson.
One factor that judges must consider is the need for sentencing. They need to determine whether the defendant needs to serve the sentence to respect the law, whether the defendant is likely to commit the offense again, and whether the punishment is just.
In some federal cases, judges will need to consider whether the person must be removed from mainstream society for the safety of the public. But copyright infringement is a nonviolent offense, so this isn’t a likely factor.
They will need to consider whether incarceration is necessary to give the defendant vocational training, educational training, medical care, or needed correctional treatment. Most copyright cases don’t involve defendants in need, but the factor may come into play.
The judge will also consider available sentences like community service, financial restitution, and other avenues for fixing the issue. They will take all of these things into account and use the sentencing range as a guideline.
Some people may have no jail time and need to serve probation or do community service. Others may be subject to much longer incarceration periods.