CRIMINAL COPYRIGHT INFRINGEMENT

What is criminal copyright infringement? Criminal copyright infringement is a violation of federal law when a person intentionally uses or distributes another’s copyrighted material for financial gain.

Copyrights protect the author’s ideas and controls their material up to 70 years after their death, or less if the author is a corporation. The protection covers writing, music, artistic works, and digitally stored material including books, songs, poetry, art, films, graphic designs, computer software, website content, and architecture.

Copyright does not protect facts, ideas, discoveries, concepts, or theories that are not written down in physical form.

While most copyright infringement is between two private parties (a civil matter), it can rise to criminal charges when the government takes action because the illegal use or sharing of copyright material is done on purpose. The FBI has recently made ‘intellectual property’ theft a priority of its criminal investigative program.

Read about our firm’s success in federal criminal cases.

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We have successfully represented clients in federal criminal cases across the United States. Our firm has offices in Atlanta GA, Alexandria VA, and Washington DC, and we frequently travel to other federal courts to represent people in serious federal criminal cases.

To prove criminal copyright infringement charges, the government must produce evidence of 4 things: (1) the author had a valid copyright; (2) the defendant used, copied, or distributed the material without the author’s permission; (3) it was done on purpose; and (4) it was done for personal financial gain or business advantage.

Felony charges can be filed when 10 copies of a copyrighted work are reproduced or distributed with a retail value of more than $2,500. Misdemeanor charges can be filed with just 1 copy and retail value of $1,000. This is a very low threshold for the government to pursue criminal copyright infringement charges and why you should hire experienced defense attorneys.

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

Prison – You can be sentenced up to 10 years for a felony conviction or for 2^nd offenses; up to 5 years if the offense involves 10 copies or value greater than $2,500; or up to 1 year when 1 or more copies has a retail value greater than $1,000. Under the federal sentencing guidelines, sentences can be increased when infringement involves devices that bypass security (e.g. video game copiers), defendant plays a leadership role in the offense, risk of death or serious injury, or possession of a dangerous weapon. Sentences may be reduced if participation is minimal.

Fines – You can be fined $250,000 for a first offense involving 10 copies or value greater than $2500. Fines increase to $500,000 when the offense involves bypassing security controls and $1,000,000 if it is a subsequent offense. You can also be fined for using a false copyright notice, for removing a copyright, and for false representations on a copyright application.

Restitution – You may be required to repay financial losses to the artist as a result of your copyright violation.

There are several possible defenses to prove your innocence:

1. Fair Use Exception – Even though you may intrude on a copyright there are situations when it can be done without the owner’s permission. Use is allowed without the owner’s permission when it is limited and “transforms” the original work for comment, criticism, or parody. This defense looks at the purpose of your work and is more likely considered fair use if you transform the original work into something new rather than simply make copies. It also is fair use with smaller quantities of material and if it does not harm the retail market for the original work.

2. Independent Creation – You do not infringe on a copyright if you created your work without knowing about the copyrighted material.  To win on this defense, you must prove there was no way for you to be aware of the copyrighted work before you created your own work. 

3. First Sale – This is a narrow defense that applies only to a specific copy of the original work. Once the artist sells the original work, copyright law no longer protects that particular copy. The new owner can dispose, destroy, rent, sell, or give away their copy since the artist no longer controls its rights. This defense applies only to the new owner and does not apply to a person in possession of the material. This defense does not apply to computer program rental, sound recording rental or destruction of art that meets the Visual Artists Rights Act requirements (ex. signed by the artist, limited editions). It does apply to goods made lawfully overseas and imported to the US.

4. Statute of limitation – Charges for criminal copyright infringement must be made within three years of the crime. If the government waits too long to file a suit, it may not be valid.

5. Permission – You cannot be charged for criminal copyright infringement if the author gives you permission to use or distribute the material. It also does not apply to small amounts of permissible copying (photo copies).

6. Public Domain – Documents that are in the “public domain” are not subject to copyright laws. This includes materials where the copyright has expired, the owner has failed to renew the copyright, or the owner places the material or ‘dedicates’ it to the public domain.

7. Jurisdiction – There may be no valid claim if the copyright is not properly registered by the artist.

Call one of our federal criminal defense attorneys if you need advice or assistance in a criminal copyright investigation. We have offices in Atlanta GA, Alexandria VA, and Washington DC, and we frequently travel to other federal courts to represent people in criminal copyright cases.