Chapter 5: Remedies for Infringement and Criminal and Civil Sanctions

Civil Remedies for Infringement

The Copyright Act provides a variety of remedies for copyright infringement and imposes both civil and criminal sanctions upon infringers.

The Act makes the equitable remedy of injunction available to copyright owners whose works are infringed. When copyright infringement occurs, the copyright owner can ask a court to issue a temporary or permanently injunctions (a court order requiring that an infringing activity cease). Because copyright involve federal law, the jurisdiction to hear such cases is reserved to the federal district courts and requests for injunctive relief as well as suits for damages can be brought in the federal district courts. Injunctive relief granted by any district court can be enforced everywhere in the United States.³⁹ In addition, courts can also order the impounding of infringing material and, upon a final judgment of infringement, its destruction or other final disposition.⁴⁰

Plaintiffs in infringement actions may also sue either for actual damages or for statutory damages. If they elect to sue for actual damages, copyright owners are entitled to recover the actual damages suffered because of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.⁴¹ The copyright owner has the option of seeking statutory damages instead of actual damage (e.g., when actual damages are nominal or difficult to prove) at any time before the court enters a final judgment in the case. Statutory damages can be awarded at the court’s discretion in any amount not less than $750 or more than $30,000 per infringement of any one work. Where more than one person is found guilty of copyright infringement, the liability is joint and severable⁴² (e.g., the plaintiff can sue one or more of the co-infringers individually or as a group and recover the full amount of the judgment from any of the infringers. If one infringer is made to pay the entire amount, she or he can then sue the other co-infringers for reimbursement for their portion of the judgment.)

In cases where the copyright owner establishes and a court finds that the infringement was willful (e.g., carried out on purpose, with knowledge that the material improperly used was protected by copyright), a court may raise the judgment to up to $150,000.⁴³ On the other hand, if an infringer proves to the satisfaction of the court that he or she had no reason to believe that his or her acts constituted an infringement of copyright, then a court in its discretion can lower the statutory judgment to a sum of not less than $200.⁴⁴ Courts may also award court costs (except for cases involving infringement by the U.S. government or its employees) and reasonable attorney’s fees to copyright owners at its discretion.⁴⁵

Criminal Penalties for Infringement

Willful copyright infringement is a criminal offense if it is made for purposes of commercial advantage or private gain if one or more copies or distribution of a copyrighted work or phonorecord is made.⁴⁶ The reproduction or distribution of copyrighted work or phonorecords with a total retail value of more than $1,000 within any 180-day period is also a criminal offense even if it is not done for the purpose of private gain or commercial advantage⁴⁷ (e.g., gratuitous copying or distributions of copyrighted materials including materials copied for personal use). Posting copyrighted material that is being prepared for commercial distribution but has not yet been commercially distributed on a public computer network is also a criminal offense if the person who posts the material knew or should have known that it was intended for commercial distribution.⁴⁸

Distributions of 10 or more copies of phonorecords or one or more copy of a copyrighted work with a total retail value of $2,500 or more made for commercial gain can lead to a maximum sentence of 5 years in jail.⁴⁹ For second offenses, the maximum sentence is increased to not more than 10 years.⁵⁰ First offenses involving a total retail value of $2,500 or less carry a maximum sentence of one year.⁵¹ In cases of infringement not made for commercial gain, the maximum penalty is three years of imprisonment if the retail value of the infringed work is at least $2,500 (six years in cases of second and subsequent offenses), or one year if the retail value of the infringed work is more than $1,000.⁵² The posting of commercial material that is not yet commercially available but is intended for commercial distribution can carry a maximum penalty of five years (10 years for second and subsequent offenses) if it is done to gain commercial advantage or personal gain and three years (six years for second and subsequent offenses) if gratuitous infringement is involved.⁵³

In addition to significant jail time for criminal infringement conviction , the Act provides a forfeiture provision that allows a court to order the destruction or other disposition of infringing copies or phonorecords and the implements, devices or equipment used in their creation.⁵⁴ Fraudulently inserting a false copyright notice on copyrighted material, knowingly distributing material with a false copyright notice, and fraudulently removing or altering a valid copyright notice can all result in a fine not to exceed $2,500.⁵⁵ In a similar vein, making a material misrepresentation as to a material fact in an application for copyright registration is also punishable by a maximum fine not to exceed $2,500.⁵⁶ In addition, equipment used in the manufacturing, reproduction or assembling of infringing materials may be seized and forfeited to the U.S. government.⁵⁷

The statute of limitations for bringing an action for criminal infringement is five years from the date that the cause of action arises.