Posted from stock.xchng, courtesy of David Lat
Civil
Liability.
If anyone copies a work that is protected by someone
else's copyright or does anything else that only the
copyright holder may do (exclusive
rights), and they do not have the copyright
holder's permission, then the copyright holder may
enforce the copyright with a lawsuit. In legal terms,
the copier has "infringed" the copyright, or at least
the lawsuit accuses the copier of infringement. If the
copyright holder wins the lawsuit, the court will enter
a judgment against the party accused of infringing the
copyright and make him/her pay damages and possibly
even the copyright holder's attorney's fees. Three
levels of legal liability in copyright infringement
cases depend on the activities and knowledge of the
people being accused of infringement.
Direct
Infringement.
The copyright holder must prove that he/she owns the
infringed copyright and that the accused infringer
violated one of the copyright's exclusive rights.
9 In other words, the infringer copied,
distributed, displayed, or performed the work without
the copyright holder's permission.
Contributory
Infringement.
The infringer is liable to the copyright holder if it
is proved he/she engaged in personal conduct that
encouraged or assisted the infringement. 10 In this level of liability, the infringer
must have actual knowledge or "reason to know of the
direct infringement." The infringer must also
contribute to the infringement in a material way.
Vicarious
Infringement.
All the copyright holder has to prove is that the
infringer had the right and ability to supervise the
activities that infringed the copyright and had a
financial interest in the activities. 11 This is the level of liability that a
university incurs by hosting an Internet service. If
any users or subscribers of the Internet service
infringe copyrights online, the university is
vicariously liable for the copyright holder's damages.
In fact, any Internet Service Provider is vicariously
liable for infringement that subscribers engage in.
Internet Service Providers have conditional and limited
immunity from lawsuits for monetary damages under the
Digital Millennium Copyright
Act.
Damages.
Once the court decides that the accused infringer is
liable, the next phase is to determine how much in
damages the copyright holder should receive. As long as
the copyright holder has registered the infringed work
with the U.S. Copyright Office and the infringement
occurred after the effective registration date, the
copyright holder has the choice of recovering 12 :
- actual damages, i.e., lost profits, or
- Statutory damages, ranging from $750 to $30,000 for each infringing copy. 13
- If the copyright holder can prove the infringement was committed "willfully," the court has the discretion of increasing statutory damages up to $150,000 for each copy. 14
If the work was not registered, then the copyright
holder can only recover actual damages. Remember
copyright is automatic and doesn't require registration
to protect the work. But if it is registered, then you
can recover these damages if you decide to sue someone
for infringing your work.
Attorney's
Fees.
If the work was registered with the U.S. Copyright
Office and the infringement occurred after the
registration date, the court has the discretion of
adding to the judgment the cost of the copyright
holder's attorney's fees. 15
Other
Remedies.
There are other remedies, including a court order
barring the infringer from making further copies or an
order to destroy unauthorized copies.16
Criminal
Liability.
If the infringer willfully copies a work for profit or
financial gain, or the work has a value of more than
$1,000, the court can sentence the infringer to one
year in jail plus fines. If the copied work's value is
more than $2,500, the infringer can be sentenced to
five years plus fines. 17
Posted by permission from John "TitanPop"
Poplawski.
Criminal penalties specifically apply to making copies of materials by computer on the Internet such as music, movie, and software files. See Downloading or Sharing Files/Software.
9 A & M Records, Inc. vs. Napster,
Inc., 239 F.3d 1004, 1013 (Ninth Cir. 2001).
10 Napster at page 1019.
11 Napster at page 1022.
12 17 USC Section 412
13 17 USC Section 504(c)(1)
14 17 USC Section 504(c)(2)
15 17 USC Sections 412 and 505
16 17 USC Sections 502 and 503
17 17 USC Sections 506 and 18 USC Section 2319