Software Piracy and other Criminal Copyright Infringement
The government has recently dramatically increased its efforts to prosecute what it labels as software piracy, which is considered a type of criminal copyright infringement. The most common primary charge for this is 17 U.S.C. § 506.
Even in pre-digital times, copyright laws were complicated and difficult to understand. But now, with hardware and software evolving at an astonishing pace, change in copyright law is constant. One might almost expect individuals to be confused by the law, and uncertain of what is legal or illegal. As we all find ourselves navigating the same vast ocean of information, we often find ourselves amongst similar boats with dissimilar purposes. For instance, many businesses, educational institutions, and government agencies use, for legitimate and often even necessary reasons, technologies and media which have come to be associated with illegal practices. Cyberlockers, offshore servers, streaming video services, and BitTorrenting or peer-to-peer filesharing arrangements are used by tens if not hundreds of millions of people every day for legally acceptable reasons. A few examples of these legal and legitimate reasons include the transmission or distribution of freeware, shareware, open-source apps, and freely-available video, text, or other media files.
Individuals who think they are using these technologies and services in a perfectly lawful manner can come home and find FBI agents at their door with a search warrant and accusations of software piracy. Oh, who knew? Well, many people accused of software piracy don’t know what they’ve supposedly done. The good news here is that a mistake of the law can sometimes mean “not guilty.” But, the bad news is that the FBI does not always operate with the presumption of innocence that is in our Constitution. So, if you’ve been accused of software piracy, and are under criminal investigation – or even if you think you might be, or could be in the future – you should seek legal advice from an attorney right away.
Below is a very basic overview of software piracy from a current legal perspective. It is full of legal jargon, just like the statutes cited. But an attorney should be able to explain all of it to you clearly, and you have the right to expect that of your attorney. If your attorney doesn’t feel like translating the legal jargon for you – or if you’re uncomfortable with your attorney’s attempt to do so – then that person is not the right attorney for you. It’s YOUR freedom at stake, not your lawyer’s freedom.
Criminal Copyright Infringement
Criminal copyright infringement is outlined in 17 U.S.C. § 506. It states: “Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18.” Depending upon which provision the government elects for its prosecution (or persecution!), below are generally the initial factors that the government must prove for all copyright infringement convictions:
- There is a valid copyright.
- There was an infringement of that copyright.
- The infringement was willful.
- The infringing items were not “first sales.” (Note: Some courts do not require this fourth item.)
Misdemeanor Copyright Infringement
To obtain a misdemeanor conviction, the government must also prove that the defendant infringed either (1) for commercial advantage or private financial gain, (2) by reproducing or distributing one or more infringing copies of works with a total retail value of over $1,000 over a 180-day period, or (3) by distributing a “work being prepared for commercial distribution” by making it available on a publicly-accessible computer network.
If convicted or taking a plea, the individual faces up to one year of prison and a $100,000 fine or twice the monetary gain or loss.
Felony Copyright Infringement
To obtain a felony conviction, the government must also prove that the reproduction or distribution was of at least ten copies of copyrighted works worth more than $2,500 in a 180-day period, or involved distribution of a “work being prepared for commercial distribution” over a publicly-accessible computer network.
- Felony under 17 U.S.C. § 506(a)(1)(A): A five year maximum prison sentence and a fine up to $250,000 or twice the monetary gain or loss. For repeat offenders, there is a ten year maximum prison sentence.
- Felony under 17 U.S.C. § 506(a)(1)(B): A three year maximum prison sentence and a fine of up to $250,000 or twice the monetary gain or loss. For repeat offenders, it’s a six year maximum.
- Felony under 17 U.S.C. § 506(a)(1)(C): A three year maximum sentence and a fine of $250,000 or twice the monetary gain or loss. If the offense was committed for purposes of commercial advantage or private financial gain, then it’s a five year maximum sentence. For repeat offenders, the maximum prison time doubles; i.e. six or ten years.
Statute of Limitations
The statute of limitations is how far back the government can reach in its persecution. For criminal copyright, it is five years. See 17 U.S.C. § 507(a).
More Government Prison Strategies
While the prison sentences discussed above already seem very severe – especially considering that we’re dealing with non-violent, non-drug crimes – it gets worse. There are a slew of other charges that the government could raise in order to increase the prison sentences and get around the statute of limitations. These are a few of them:
- conspiracy (19 U.S.C. § 371)
- aiding and abetting or inducement (18 U.S.C. § 2)
- tracking in counterfeit goods (18 U.S.C. §§ 2318, 2320(a))
- Digital Millennium Copyright Act or DMCA (17 §§ 1201-1204)
- mail and wire fraud (18 U.S.C. §§ 1341, 1343, 1346)
- Racketeer Influence and Corrupt Organizations Act or RICO (18 U.S.C. §§ 1961-1968)
- money laundering (18 U.S.C. § 1956)
Your Legal Rights
Being the target of a government investigation is scary. It is even scarier when you are not sure what you have done wrong, or if you believe what you did do was not against the law. If you are facing this situation, don’t hide your head in the sand – the Government won’t give up until it is shown the light. Seek legal help as soon as possible and try to prevent any further actions against you.
For more information, see Computer Crime / Cybercrime.