What is Criminal Copyright Infringement?
While even a single pirated movie or software package could result in civil penalties, it usually takes a lot more to spark a criminal copyright case. That’s not to say you shouldn’t take these seriously. When the FBI takes notice of intellectual property violations they are relentless, and if you are convicted you can face harsh sentencing.
But if sneaking an unpaid version of Avengers: Endgame onto your computer isn’t likely to result in a federal investigation, what is? As it happens, there are several criteria your infringement would need to meet in order to make criminal charges a concern.
First, the prosecution will have to prove that a valid, registered copyright exists. The copyright must not be obtained by fraud.
In most criminal cases, the company who owns the copyright will have taken the time to register it. But be careful. According intellectual property law, an individual owns a copyright as soon as they put any creative work into tangible form. That said, anyone who registers a copyright receives several advantages. For one thing, it creates a presumption of ownership, and the ability to enforce your copyright through lawsuits.
In other words, the creator owns a copyright as soon as his or her creation is brought into existence, but he or she can’t back up so much as a cease and desist letter until the copyright is registered.
Next, the prosecution has to prove you had criminal intent when you acted, and that you willfully infringed upon the copyright.
This is difficult to prove even when meeting the civil standard (preponderance of evidence), let alone beyond a reasonable doubt. For example, if a reasonable person would believe he or she had the right to copy the material and to use it as it was used, then no criminal act may exist, even if the party would still be vulnerable to civil actions.
Finally, the prosecution would have to prove you infringed on the copyright for financial gain or purpose. Not for personal use (the Avengers example above) but to make money.
For example, if you created a membership site where subscribers could gain access to even a single pirated movie, you could be convicted. But if you secretly recorded the movie on your phone so you could watch it by yourself, later, without bartering it away, trading it away, or selling it, then you could not.
Keep in mind that you don’t have to make a profit for the prosecution to prove you intended to reap some sort of financial gain. All they have to prove is the intent to create a profit, whether or not you were successful. And they don’t have to prove that money would have changed hands: only that you would have received some sort of commercial advantage or benefit.
You should also note that Lee Koch Law is not suggesting it’s totally fine to violate copyright as long as you don’t sell anything. It’s illegal, even if nobody is likely to make a criminal case out of it, and it can still result in massive financial losses if someone decides to take issue with your activities. It takes very little money to obtain a legitimate copy of most content these days, and even paying full price for a $500 piece of software doesn’t compare to what you’ll pay if you end up in civil court trying to defend against a copyright infringement case.
It just won’t necessarily be handled in federal criminal court.
Finally, for the feds to take notice, the value of the loss to the copyright holder must be more than $25,000.
If you are being charged with this crime you should take it seriously. The Feds are not coming after you because they think you’re just doing what everyone else does. They’re coming after you because you’re creating massive financial losses for the legitimate holders of these licenses.
See also:
Small Acts, Big Trouble: The Meaning of a Federal Conspiracy Charge
