Copyright infringers can be sued civilly and in some cases prosecuted criminally for the same infringing act. The civil statute of limitations is three years, but there is a five-year statute of limitations for a federal prosecutor to bring a criminal case against an infringer. In order to bring a felony copyright infringement suit, the copyright must be registered. The prosecutor will have to show that the defendant willfully infringed for commercial advantage or financial gain by reproducing or distributing one or more copies or phonorecords of one or more copyrighted works with a total retail value of more than $1,000 during a 180-day period, or by distributing a work that was being prepared for commercial distribution by making it publicly accessible on a computer network, even though the defendant knew it was intended for commercial distribution.
What kind of conduct is evidence of “willfulness?” Courts have found willfulness when a defendant was given legal notice that his conduct was infringing or when he had notice that his conduct was illegal. For example, if you repeatedly take your camera phone into advance screenings of movies and record what is on the screen and put it up online, ignoring several cease and desist letters from a motion picture studio notifying you that your conduct is illegal, a court is likely to see your actions as willful.
Anti-Circumvention Provisions of the Digital Millennium Copyright Act
Under the Digital Millennium Copyright Act (DMCA), you may also face criminal penalties if you try to circumvent a copyright control, such as digital rights management (DRM) technology or encryption. Copyright controls can either keep you from accessing a work (access controls) or limit what you can do once you access it (copy controls). There is a ban on circumventing access controls. There is no ban on circumventing copy-control measures, although it is illegal for someone to give you tools to do so, and you may be infringing. Often, access and copy controls are merged.
If you want to access a copyrighted film that has been encrypted to stop access, and you try to bypass the access control, you may be both civilly and criminally liable. Under 17 U.S.C. § 1204(a), you can be held criminally liable if you circumvent access controls willfully and for purposes of commercial advantage or private financial gain.
More broadly, if you traffic in (make, sell, give away, or otherwise offer) tools to help other people circumvent access or copy controls, and you do so willfully and for purposes of commercial advantage or private financial gain, you can also be criminally liable. The prohibition against offering tools is a broad prohibition. If someone writes code to circumvent access and copy controls, and other websites simply post the code for the program, the owners of those websites can be liable under the anti-trafficking provision of the DMCA. Critics of this law note that it can hinder legitimate competitors.
There are some exceptions that allow circumvention for limited purposes or distributing circumvention tools under some circumstances. There is also a class of works that are exempted by the Librarian of Congress based on complex analysis of what class of works would probably be adversely affected by the anti-circumvention provisions of the DMCA.
How Does the Federal Government Decide to Criminally Prosecute?
If you have received a cease and desist letter noting criminal penalties for willful infringement, you may be wondering how the federal government decides whether to criminally prosecute someone for criminal copyright infringement. The federal government makes these decisions carefully. The stated policy is that all meritorious cases that fall into the parameters of the statute should be seriously considered for prosecution. The two biggest factors that federal prosecutors consider are the seriousness of the offense and the likelihood of a successful prosecution.
The seriousness of an offense depends in part on the number of copies and the worth of them. Federal prosecutors are encouraged to give special attention to infringers who are successfully sued civilly and yet continue to infringe. The success of a prosecution depends on whether there are evidentiary or legal issues, and how likely it is a prosecutor will be able to explain them away or successfully advocate in spite of them.
What Are the Penalties for Criminal Copyright Infringement?
Penalties for criminal copyright infringement can be found at 18 U.S.C. § 2319. A first-time offender who is convicted of violating section 506(a) by making unauthorized reproductions or distributing at least 10 copies or phonorecords during a 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.
If you have previously been convicted of criminal copyright infringement, for second or later offenses, you can be sentenced to a maximum of 10 years in prison, up to $250,000 in fines, or both. There are enhanced penalties for recidivists. Those found guilty of misdemeanors can be sentenced to up to one year in prison and fined a maximum of $100,000.
If you are convicted of a first offense of circumvention of access controls or trafficking in technology to circumvent copyright controls, you can be fined up to $500,000, imprisoned for up to five years, or both. For subsequent offenses, you can be fined up to $1,000,000, imprisoned for up to 10 years, or both.