Copyright infringement definition

Here’s a copyright infringement definition for you. You would be found to have infringed someone’s copyright if they:

  1. own a valid copyright (if the work was registered with the Copyright Office within 5 years of the date of its first publication, it is presumed to be protected by a valid copyright), and
  2. prove that you copied a substantial portion of protected material from their work.

It’s rare that copying can be proven directly (they’d need witnesses or testimonial proof), but it doesn’t have to be. Circumstantial evidence will suffice. If you had access to the work, and there’s substantial similarity between the works (so that independent creation appears unlikely), you would probably be found to have infringed.

The question of infringement is decided by the court. Not the copyright office, the court. And it’s on a case by case basis. There are no hard and fast rules here. And guess what? Intent doesn’t matter. The copyright owner doesn’t even have to prove that you were negligent (as in “a reasonable person would have known” not to copy that work).

So that’s the copyright infringement definition — what are the penalties?

Copyright infringement penalties

If you are found to be a copyright infringer you will be liable for either:

  1. the copyright owner’s actual damages and any additional profits you made, or
  2. statutory damages.

Actual damages and profits

The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits you’ve made from the infringement. In establishing your profits, the copyright owner is required to present proof only of your gross revenue, and you are required to prove your deductible expenses and the elements of profit that didn’t come from your use the copyrighted work. See 17 USC § 504(b).

Statutory damages

The copyright owner may choose, at any time before the court reaches its final judgment, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, in a sum of not less than $750 or more than $30,000. The court gets to decide what amount is fair. All the parts of a compilation or derivative work constitute one work. (This last point gets argued about, though, believe me.) See 17 USC §  504(c)(1).

But wait, there’s more ...

In a case where the copyright owner successfully proves to the court that you committed the infringement willfully, the court may increase the award of statutory damages to an amount of up to $150,000. That’s $150,000 per work infringed. Yikes.

But where you, the infringer, successfully prove to the court that you were not aware, and had no reason to believe, that your acts infringed a copyright, the court may reduce the award of statutory damages to an amount of not less than $200. (But seriously, good luck proving that ... especially if there was a copyright notice on the work. And even if there wasn’t, notice hasn’t been required since March 1, 1989.) See 17 USC § 504(c)(2).

Let’s play “what if ...”

Let’s pretend you want to own a copy of the complete first season of the TV show 24. (Hey, I’m a Jack Bauer fan, too.) You don’t own a TiVo® and you don’t want to buy Fox’s DVD set, so you go to a file sharing site and you download all the episodes (while uploading your copies of the first season of Lost).

Now I’m not saying they would, but if Fox Broadcasting Company decided to sue you for copyright infringement, you could be on the hook for a lot of dough. Why? They’d most likely sue you for willful infringement of 24 separate works (claiming that each episode is a separate work, rather than season one constituting a single work). That could amount to $3,600,000. Yowza.

If you managed to convince the court that you weren’t aware and had no reason to believe you were infringing Fox’s copyright, the amount you owe might ultimately be reduced to $4,800 (or $200 per infringement). That probably wouldn’t fly, though, since there are copyright notices on each episode.

But since this is a hypothetical, let’s say the court bought your “honest, I didn’t know” argument. Now you’ll be praying that the court decides a just award to Fox is closer to $18,000 ($750 per work) than $720,000 ($30,000 per work). Or you’ll settle with Fox for some extortionate fee. But, hey, it’s better than $3.6 million, yes?

Oh yeah, and Fox is probably going to want court costs and attorney’s fees, too. 17 USC § 505 gives the court discretion to award costs, and it may also award reasonable attorney’s fees to the winner. (So not only will you be paying your lawyer, you might end up paying for Fox’s lawyers, too.)

Did you know you can also be sued for criminal infringement?

Copyright infringement is always at least a civil action. But you can also be charged with a federal crime if you infringe copyright willfully, either:

  1. for purposes of commercial advantage or private financial gain, or
  2. by reproducing or distributing (by any means, including electronically), one or more copyrighted works that have a total retail value of $1,000 or more within any 180-day period.

See 17 USC § 506(a).

Okay, back to our little hypothetical. This time let’s say you’re hauled in for criminal copyright infringement. Same facts. (Look, I’m not saying it’s likely, but I want to reuse the facts we’ve got, okay?) So here you are, facing criminal charges ...

But you can’t be on the hook for this, right? You didn’t download those files for “purposes of commercial advantage or private financial gain,” did you? Not so fast. You still might be in trouble.

The No Electronic Theft (NET) Act, passed by Congress in 1997, imposes criminal penalties on copyright infringers who had no criminal intent and who made no profit. (Where do you think the language in § 506(a)(2), above, came from?) The NET Act amended section 101 of the copyright statute by adding the following definition:

[t]he term ‘financial gain’ includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

You were sharing what you had (those Lost episodes are copyrighted works) so you could get the whole first season of 24 (copyrighted works). You gave copyrighted works to receive other copyrighted works. You bartered, and the definition of financial gain includes bartering.

And that’s the point of the NET Act — to get at people like you. Here’s what Congress had to say about adding that definition of “financial gain” to the Copyright Act:

This revision [...] will enable authorities to prosecute someone like LaMacchia who steals or helps others to steal copyrighted works but who otherwise does not profit financially from the theft.

You can read the Congressional Committee report here.

What’s that bit about “someone like LaMacchia?” Who’s LaMacchia? The defendant in United States v. LaMacchia, that’s who. He was accused of setting up a computer to allow people to download copyrighted software. Since he wasn’t doing this commercially and reaped no financial gain, the government could only try to prosecute the case under wire fraud statutes ... and the case was eventually dismissed. So Congress (urged on by corporate copyright holders, no doubt) decided to do something about it.

So listen, you could be looking at a misdemeanor copyright infringement charge here if the government got involved. Let’s see ... jail for a year and/or a $100,000 fine just for downloading a broadcast TV show? An extreme example, but we live in extreme times. (With the RIAA suing 12-year old children for file sharing, I’d say the times are extreme.)