Copyright Infringement

Copyright infringement, which includes internet piracy, involves the use of certain kinds of works without permission. Works such as movies, music, and writings are usually protected from reproduction, distribution, or making derivative works without the permission of the copyright holder. Many people who are intentionally or accidentally involved in copyright infringement may never be charged, but for those convicted, the penalties may be severe.

Piracy usually involves unlawful copying of software, movies, digital music files like MP3s, or video games. Because digital technology now allows for fast, easy, and lossless copying of digital files, it has become easier than ever to pirate, host and distribute copyrighted works. It also makes it more difficult for copyright owners to combat.

Protected Copyright Works

Under federal law, copyright protection subsists in original works of authorship fixed in a tangible medium of expression from which they can be perceived, reproduced or otherwise communicated. Copyright does not extend to ideas or concepts. This description sounds rather vague, and it may be easier to think of copyright protection in the kinds of work that fall within this definition. This includes:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

These works don't have to be registered to be copyrighted. They are protected as soon as they are put in a tangible medium. However, copyright registration does offer additional protections for the copyright owner, including statutory penalties. Copyright registration is done through the Library of Congress.

See U.S. Code, Title 17.

Federal Copyright Laws

There are a number of federal laws which may apply to allegations of copyright infringement, including Title 17 of the U.S. Code, and the U.S. No Electronic Theft Act (NET Act). Some violations are not treated as criminal acts, but others are, and involve heavy fines and even the possibility of jail time.

Civil penalties for copyright infringement allows copyright owners to sue for damages and profits from the infringement. Even without having to prove actual damages, statutory damages provide for a recovery of up to $30,000, or up to $150,000 where the infringement was willful.

Any person who willfully infringes a copyright for commercial advantage or private gain, may face up to a year in prison. Where the total retail value of copyrighted works has a total retail value of more than $2,500, a defendant may face 5 years in prison. A second felony offense can result in up to 10 years in prison.

Any person who willfully infringes a copyright by reproducing or distributing by electronic means 1 or more work with a retail value of over $1,000, may face up to three years in prison, or up to 6 years on a second felony offense.

Any person who willfully infringes a copyright by distributing or making available online of a work prepared for commercial distribution can be punished by up to three years, even if the defendant was not seeking a financial gain. If they were after commercial advantage or private gain, the penalty can be up to 5 years in jail.

Criminal trafficking in counterfeit labels, illicit labels or counterfeit documentation or packaging is punishable by up to 5 years in prison. This is in addition to civil remedies which the copyright owner may seek in civil court.

Unauthorized recording, transmitting, or trafficking in sound recording and videos of live musical performances can be pushed as a criminal act if it is done for private financial gain. A prison sentence can be for up to 5 years, or 10 years on a second offense.

See U.S. Code, Title 18.

Fair Use Limitations

In some cases, reproduction can be considered fair use, depending on the purpose of the copyright material reproduction. This includes for the purposes of criticism, comment, news reporting, teaching, scholarship or research. Fair use reproduction is not treated as copyright infringement. Fair use can involve quoting excerpts of works in a review or for commentary; summarizing an article with quotes in for news purposes, and ridiculing work as parody.

Copyright Infringement Defenses

There are a number of available defenses in copyright infringement cases. In addition to fair use, a copyright infringement charge may be defended by showing that the alleged copy is really a newly created work, or is for a non-commercial use. However, each case is different, and copyright infringement cases can be very complicated. A dedicated attorney who understands copyright infringement law in Massachusetts will be able to clarify the issues, and identify all available legal defenses.

At Dhar Law, LLP, our committed attorneys have years of experience representing people charged with copyright infringement, intellectual property theft, or other criminal charges. We have defended our clients before government investigations and in federal court. If you are facing an investigation, criminal charges or or have any questions about copyright infringement, please contact our offices.