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Jail for Copyright Infringement? It’s possible.

When we think about copyright infringement, most of the time we default to thinking about “Person A suing Person B” for infringing their copyrighted materials. That’s a civil lawsuit.

But copyright law also carries some sharp penalties in the criminal realm too– think “the State vs. Person B.” The federal government can prosecute criminal copyright theft and put infringers in jail based on the Copyright Act.

Criminal Copyright Laws

Section § 506 of the Copyright Act authorizes criminal prosecution for a party who willfully infringes a copyright when the infringement:

  • is for purposes of commercial advantage or private financial gain,
  • results in the production of over $1000 worth of illegal copies; or
  • involves a work intended to be commercially distributed (example: an unreleased film or music album).

The statute also criminalizes other acts, such as removing a copyright notice from a protected work, fraudulently displaying a copyright notice, and/ or making false representations to the U.S. Copyright Office.

In addition, the DMCA (Digital Millennium Copyright Act) criminalizes certain behaviors related to circumventing copyright controls, i.e. digital rights management (DRM) technology or encryption. Copyright controls can either keep you from accessing a work (access controls) vs. 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 provide tools to circumvent copy-control measures.

Felony vs. Misdemeanor Copyright Infringement

Criminal copyright infringement can be a misdemeanor or felony, depending on the seriousness of the infringement. To prove felony copyright infringement, the Government must show (i) the defendant willfully infringed upon a valid copyright for copies prepared for commercial distribution through unlawful reproduction or distribution (ii) with total value of more than $2,500.

Misdemeanor copyright infringement requires a showing that the infringer reproduced or distributed one or more works with a total value of more than $1,000 within a 180-day period.

Penalties

Penalties for criminal copyright infringement can be found at 18 U.S.C. § 2319. Fines for criminal copyright infringement range from a minimum few thousand dollars worth up into the millions. Criminal copyright infringement penalties can even extend to to prison sentences of up to ten years in federal prison.

While criminal prosecution for copyright infringement is much rarer than civil actions, is an active area. (Here’s a case from 2021, here’s another well known case, and here’s another).

The FBI says it best: “theft is theft, and if you’re going to willfully steal another party’s intellectual property, the FBI stands ready to step in and shut you down.”

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Do you need help with enforcing your copyrights? Are you being threatened with a copyright lawsuit? Contact us now for assistance.

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