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