1. Criminal Copyright Infringement
CJ 520 / CJ 600
4.0

2. 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

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

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

5. 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.

6. 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."

7. History of Copyright Legislation
Copyright Act of 1790
Work must be registered
Copy of work in repository
Copyright Act of 1909
Works published
Notice of copyright

8. 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

9. History of Copyright Legislation cont.
Copy Term Extension Act - CTEA
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

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

11. 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

12. Copyright Infringement Laws
Law for prosecution Title 17 U.S.C. § 506
Law for penalties Title 18 U.S.C. § 2319

13. 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

14. 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

15. 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

16. 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

17. 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.

18. 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

19. 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

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

21. 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

22. 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

23. 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

24. 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

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

26. 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

27. 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

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Unpublished works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

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

30. 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

31. 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)