Criminal Copyright Infringement
Citation: I. Trotter Hardy (2002) Criminal Copyright Infringement. William & Mary Bill of Rights Journal (RSS)
Internet Archive Scholar (search for fulltext): Criminal Copyright Infringement
Download: http://scholarship.law.wm.edu/wmborj/vol11/iss1/10/
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Summary
Provides history of criminal provisions in U.S. copyright (excerpts):
- Congress adopted the first criminal provision in 1897 ... applied only to unauthorized performances of plays and music, not to the reproduction of books or maps ... likely sprang from a rise in the late nineteenth century of a phenomenon not previously associated with copyright infringement - what we might today call "hit and run" performing groups ... 1909, including within the criminally prohibited reach all types of infringements, not just performances ... 1974, for instance, Congress stiffened criminal penalties, though with the exception of repeat offenders, criminal infringement remained classified as a misdemeanor ... 1982, Congress for the first time defined certain infringements to be felonies and also - not coincidentally- removed the specification of criminal penalties from the Copyright Act, placing them in the criminal code.' At the same time, Congress raised the ceiling on monetary penalties from $10,000 to $250,000 - a twenty-five-fold increase - for infringements of motion picture and sound recording copyrights. In that same year, 1982, prison sentences for criminal infringement were limited to two years, and the statute required a finding that the defendant had made more than one hundred copies over a six-month period before punishment could be imposed. Two years later, in 1984, Congress raised the maximum prison sentence for large-scale infringement activities from two years to five years." Congress also lessened the requirement for the imposition of monetary penalties by changing the number of infringing copies necessary for that imposition from one hundred to only "one or more sound recordings" or "more than seven but less than sixty-five copies [of] one or more motion pictures." ... Under the N.E.T. Act [1997], conviction is still possible for violations of the original provision - infringement committed for the purpose of advantage or gain. But conviction is now also possible, without a showing of such purpose, when a defendant commits an infringement "by the reproduction or distribution, including by electronic means, during any 180-day period, of one or more copies or phonorecords of one or more copyrighted works, which have a total retail value of more than $ 1,000. " For the first time, Congress had fundamentally changed the criminal copyright provisions by adding a new section that did not focus at all on the defendant's gains, but rather focused on the potential consequences of the defendant's actions on the plaintiff's losses ... [1998] among other changes, the DMCA defined three new areas of criminal wrongdoing [independent of infringement]. One amendment prohibits the act of bypassing a technology used to limit access to copyrighted works. A second prohibits trafficking in devices that are used for that same purpose, " and the third prohibits trafficking in devices used to bypass a technology that protects a copyright owner's normal copyright rights ... [2000] Congress also has defined as a criminal wrong an activity that is closely associated with copyright infringement, but does not actually constitute copyright infringement: the recording of a live performance without the performer's consent when done for commercial advantage or private gain. This activity is now punishable by up to five years of imprisonment. Though not a copyright statute, since copyright law only applies to creative works that are recorded with the performer's consent, the provision closely tracks the wording of criminal copyright infringement. ... Part of the move to more criminal law enforcement of copyright rights, not surprisingly, appears in the growth of new programs in executive branch law enforcement agencies. Chief among these agencies, the Department of Justice ("DoJ") has recognized the need for its own education about, and greater participation in, curbing infringements. It has also recognized Congress's elevation of some infringements from misdemeanor to felony status, the latter almost automatically getting a higher priority within the agency than the former. In 1991, the DoJ formed a "Computer Crime Unit" for computer crimes broadly (i.e., not just copyright infringements). In 1996, the "unit" was shifted to the organizationally elevated category of "section" and, significantly, was renamed the "Computer Crime and Intellectual Property Section." Just three years later, the agency announced the "Intellectual Property Rights Initiative," a joint project among DoJ, the Federal Bureau of Investigation, and the U.S. Customs Service.
Argues that "bad" and "good" infringers defined by scale of impact on copyright owner and gain to infringer, eg shady mass duplicator and professor making class handouts. Categories vexed by internet, allowing "harm to victim, no gain to perpetrator."
Public willingness to tolerate criminal penalties tempered by lack of experience in childhood with treating abstractions as property and lack of impact of individual infringements (told by of analogy to voting: individual votes never decide elections, but voting still "counts").