Criminal Copyright Infringement CJ 520 / CJ 600 4.0

Three Essential Copyright Crimes Willful infringement for commercial advantage or private financial gain Willful infringement not for gain but by some electronic means Willful infringement of a work being prepared for commercial release

Examples of Copyright Crimes Napster - P2P Networks Copying movies to DVD for distribution Counterfeit software - Warez Modifying Xbox game consoles Camcording movies in theaters

Copyright Review Creative works Pertains as soon as work is in tangible form Two purposes: Protects rights of creator Benefit to general public

Copyright Review cont. Grants six exclusive rights: Reproduction Preparation of derivative works based upon the original copyrighted work Public distribution Public performance of certain types of works Public display of certain types of works Performance of sound recordings by means of digital audio transmission.

Phonorecord: "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

History of Copyright Legislation Copyright Act of 1790 14 + 14 Work must be registered Copy of work in repository Copyright Act of 1909 28 + 28 Works published Notice of copyright

History of Copyright Legislation cont. Copyright Act of 1976 Life + 50 (75 for anonymous works) New technology Registration not necessary No Electronic Theft Act - NET Act- 1997 Criminal prosecution does not require monetary profit / commercial benefit Increase in fines / imprisonment maximums

History of Copyright Legislation cont. Copy Term Extension Act - CTEA - 1998 Mickey Mouse Protection Act Life + 70 Corporate works 120 years after creation 95 years after publication Froze 1923 for works to enter public domain Did not effect already expired copyright

History of Copyright Legislation cont. Digital Millennium Copyright Act (DMCA) - 1998 Digital rights management OSP / ISP Liability Family Entertainment & Copyright Act Artists’ Rights & Theft Protection Act of 2005 Family Home Movie Act of 2005

Review of Legal Terms Mens Rea Actus Reus Stare Decisis Prima Facia Criminal intent Actus Reus Physical Act Stare Decisis Precedent decisions are to be followed by the court Prima Facia 1st view Establishes fact

Copyright Infringement Laws Law for prosecution Title 17 U.S.C. § 506 http://www.law.cornell.edu/uscode/17/usc_sec_17_00000506----000-.html Law for penalties Title 18 U.S.C. § 2319 http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002319----000-.html

Criminal vs. Civil Criminal copyright lawsuits More egregious actions Higher standard of guilt (mens rea) Civil copyright lawsuits May use precedents in criminal cases Majority of copyright cases are federal as apposed to state / local

Felony vs. Misdemeanor Felony Misdemeanor 10 or more copies, 1 or more copyrighted works in a 180 day period Retail value $2,500 + 5 year maximum All pre-release infringement Misdemeanor 1 or more copies, 1 or more copyrighted works in a 180 day period Retail value of $1,000+ 3 year maximum May cover exclusive rights other than reproduction or distribution

Required Proof - Felony A Copyright Exists Registration w/in 5 years of publishing date More than 5 years - court’s discretion Prima Facie - establishes fact Shifts burden of proof to defendant

Required Proof - Felony Defendant Acted Willfully Mens Rea Higher standard than civil case Evidence of reproduction/distribution alone not enough Act was commented voluntarily knowledge that is was against the law not a mistake, accident, or in good faith

Required Proof - Felony Defendant Acted Willfully Proof at Trial The defendant's acknowledgment that his or her conduct was improper Actual notice to the defendant that his own conduct was illegal Notice to the defendant that another person's similar conduct constituted infringement The defendant's past manufacture and distribution of pirated works The defendant's statement to Postal Service employee that others were selling illegal DVDs in the area The defendant's frivolous or bad-faith claim of compliance with copyright laws, which demonstrates a knowledge of copyright laws.

Required Proof - Felony Defendant Acted Willfully Absence of Willfulness Evidence of the defendant's good-faith belief that his conduct was lawful, coupled with rational attempts to comply with the copyright law as supposedly understood by the defendant Acting pursuant to legal counsel, even if the advice was erroneous, if the defendant disclosed all relevant circumstances to his attorney and followed the attorney's advice in good faith

Required Proof - Felony Infringement of a Copyright Reproduction Direct evidence Eyewitness testimony Computer log files Circumstantial evidence Defendant had access to victim’s work Defendant’s work substantially / prohibitively similar to victim’s

Required Proof - Felony Infringement of a Copyright Distribution Copies of work made available to the public Includes not only sales, but also gifts & barters

Required Proof - Felony Infringement of a Copyright Distribution Online - P2P Uploading file Making work available without transferring it Violation of right to distribution Does not matter if file is downloaded or not Napster WAREZ sites Downloading file Violation of right to reproduce

Required Proof - Felony 10+ Copies, 1+ Works, in 180 Days Excludes low level infringement Retail value of item Not required Full retail value Value of similar item Financial harm done to victim

Required Proof - Felony 10+ Copies, 1+ Works, in 180 Days Distribution over Public Network of Works Being Prepared for Public Distribution No Electronic Theft Act (NET Act) Covers: computer programs, musical works, sound recordings , movie - audiovisual works No pre-registration Lower degree of Mens Rea No proof of financial gain

Required Proof - Misdemeanor Copyright exists An infringement occurred - actus reum Defendant act willfully - mens rea Commercial advantage / private gain 1 or more works w/ value of $1,000 in a 180-day period

Copyright Defenses Statute of Limitations Jurisdiction Venue 5 years Within the United States Venue Any area crime committed

Copyright Defenses cont. First Sale May sell original, not copy Cannot sell leased / rented items Is software leased? Yes and No Disproving First Sale Evidence of reproduction Copyright holder never sold copy to the defendant

Copyright Defenses cont. Fair Use Purpose of use Commercial Addition to work Nature of work Factual/historical vs. fiction Amount of work used Key points given away Thumbnails Effect on potential market

Copyright Defenses cont. More on Fair Use Unpublished works Rarely in criminal cases Rejected on P2P Archival software

Penalties Misdemeanor Felony 1-3 years maximum $100,000 fines 1st time Repeat offense 5 - 10 year maximum

Additional Charges Aiding & abetting, inducement & conspiracy Trafficking in live musical performances Unauthorized recording of a motion pictures Digital Millennium Copyright Acts Criminal offense under the Family Entertainment Copyright Act Trafficking in counterfeit & illegal labels Trafficking in goods & services w/ a counterfeit trademark

Additional Charges cont. Unauthorized reception of cable & satellite service Economic Espionage Act Mail & wire fraud Money laundering Interstate transportation & receipt of stolen property of goods Racketeering Influenced & Corrupt Organizations Acts (RICO)