Music, movies, and novels are becoming widely available due to digitisation and the internet. They make information more susceptible to unlawful use, posing a threat to the long-established copyright domain. The old order is responding to this by maintaining a fine balance between safeguarding authors' rights and sustaining public access. As technology evolves, copyright holders are increasingly seeking new legal protection for their assets. Although it is unpredictable what face a new order will take, the potent mix of technological advancements and economic incentives is hard to ignore.
In the United States, the Congress tightened existing copyright rights while creating many new ones since the early 1980s. Significantly, two recent legislations broadened the scope of criminal liability for copyright infringement. The No Electronic Theft Act of 1997 (NET) prohibits copyright infringement for personal and commercial purposes. The Digital Millennium Copyright Act of 1998 (DMCA), on the other hand, adopts a more proactive approach by imposing criminal penalties for conduct leading to infringement. At first glance, treating the willful violation of copyrighted material as a crime appears to be simple. A copyright is property, according to Congress members, and willfully stealing or using the property without authorisation is a crime. When illicit use of knowledge, ideas, and information is considered routine theft, however, a burning question persists. The common understandings that support criminal law are difficult to extrapolate to information, knowledge, and ideas. Knowledge and ideas, including those in popular music and commercial software, have not been subjected to the standards that regulate physical property. The outputs of intellectual work and the advancement of the entire society are inextricably tied.
Despite the state's ability to stop behaviour harming the community – and its power to define harm - the assessment of harm exposes many problems. One is determining and quantifying the economic damages suffered by copyright holders as a result of the infringement. Second, the harm created by rivals and economic infringement enablers is not the same as that caused by individuals who infringe for personal gain. When coupled with various more minor infringements, a single offender might cause enormous harm to the copyright owners. Connecting total harm to the minor harm caused by personal use of copyrighted material raises questions of fairness, implying criminalising personal use of copyrighted material. A different view sees harm as an attack on the national interest in copyright policy, a definition of harm that must consider the purpose of copyright laws. However, the harm justification is not persuasive here either. Criminalising infringement stresses one of copyright policy's goals, which is to foster innovation at the expense of the second goal, ensuring public access to knowledge.
Imposing criminal penalties for copyright infringement for personal use and bypassing copy protections restricts public access to copyrighted material, which may lead to little innovation. Furthermore, criminalising based on cumulative harm effectively chalks up the risk of national policy harm to those who have a weak connection to the harm caused. The weak link between personal use violation and the danger of harming the national copyright policy may not warrant criminal penalties. In conclusion, analyses of the harm and morality of copyright infringement show that the new criminal legislation is inconsistent with the legal foundations that allow them to exist.
Criminal copyright infringement law in the US
To fully grasp the ramifications of provisions of the NET and the DMCA, we must look back at criminal copyright infringement before the new laws were adopted. Preventing rival infringement has been a critical element of copyright law for commercial purposes and has been illegal since 1897. Until the introduction of the NET, criminal liability was limited to those who violated "for profit," and only economic competitors were prosecuted. The criterion of monetary gain reflected concern that copyright holders should be able to benefit from their works.
The criterion accommodated the public goal of preserving public access to copyrighted content by precluding personal users from criminal liability. The Supreme Court observed in 1988 that the Congress' reluctance to impose criminal liability for copyright infringement had diminished in the face of technological advancements. The new law used criminal penalties to protect copyrighted work, raised the severity of criminal penalties, and used criminal provisions to protect quasi-copyrighted material. Although these changes dramatically altered criminal copyright law, the legislation only applied to copying for monetary gain, keeping the historical distinction between competitive and non-competitive infringement intact. It became easy to publish stolen digital software programmes on electronic bulletin boards in the early 1990s, making them freely available to the public. This behaviour – misappropriating and disseminating without a financial motive – did not violate criminal copyright rules, as the LaMacchia case demonstrated. In the case, the court held that as per cybercrime and copyright law in power at the time, copyright infringement for non-commercial purposes could not be ushered under criminal copyright law. The case prompted the Congress to pass the NET, removing the requirement of monetary gain and commercial intent to result in criminal responsibility. The DMCA was enacted in the following year and went further by criminalising action that may lead to infringement.
Evolution of criminal liability associated with copyright infringement
A civil wrongdoer does not face the same punishment as a criminal wrongdoer, at least not to the same extent. As a result, society should refrain from labelling activities as criminal if they lack the blameworthiness that justifies such moral judgment. Infringers can be prosecuted for civil infringement regardless of whether they were aware of the violation or motivated by profit. Previously, criminal infringement required not only proof of willfulness but also proof that the offender was participating in the infringing action for commercial benefit or private financial gain, unlike the approach taken by the NET Act. With the introduction of the NET Act, "wilful" infringement has become the single characteristic of criminal copyright infringement that prohibits legal protection for copyright owners and unjustified punishment of common individual behaviours.
Depending on the situation, the willfulness requirement in criminal law can be interpreted in various ways. Proving willfulness in criminal copyright infringement while retaining copyright legislation's constitutional goal demands proof of a known legal duty violation. Willfulness can be ruled out by credible assertions of ignorance of the law or a good-faith belief in the legality of the action. In the United States, the NET Act's wording, legislative history, and precedents all support the adoption of a willfulness test, which requires proof that the defendant was aware that her actions were infringing. Because of the Copyright Act's highly technical, complicated, and ambiguous character, the Government must also be obliged to refute a claimed good-faith conviction in the activity's legality. Otherwise, there is a grave risk of trapping people who may be acting innocently in the net of criminal infringement. The replication and dissemination of copyrighted works are not always driven by a desire to steal another's property, just as currency structuring is not always malevolent.
Intent, willfulness, liabilities, and procedural and evidentiary requirements differ between criminal and civil infringement. The presence of a valid copyright and the willful infringement of the copyrighted work by reproduction or distribution are common factors in all criminal copyright violations. The plaintiff must establish that the defendants knew their actions infringed on legitimate copyright and that they "acted with reckless disregard for, or deliberate blindness to, plaintiff's rights" to prove willful acting. In criminal copyright infringement cases, courts define "willfulness" as infringement done knowing that the defendant's conduct constituted copyright infringement for purposes of 17 USC 506(a) of the United States Copyright Act. For example, in United States v. Anderson, 741 F.3d 938 (9th Cir. 2013) , the court of appeals determined that infringement is willful when:
(1) the defendant participated in conduct that infringed the copyrights, and
(1) knew those actions might infringe the copyrights [or acted with reckless disregard for or willful blindness to the copyright holder's rights].
"Willfulness" is frequently established by inference from the available evidence.
The case of United States v. Liu 731 F.3d 982 (9th Cir. 2013) is an excellent example of how to consider this element: The defendant denied copyright infringement knowledge or involvement: his company manufactured DVDs for another firm; when the defendant realised he had been deceived about the copyright permissions involved, he filed a lawsuit against the latter. The court of appeals ruled that the term "willfully" in 17 USC 506(a) meant a voluntary, purposeful breach of known legal responsibility. The court further said that the district court directed the jury to use a civil liability standard by defining wilful infringement without requiring that the defendant knew he was committing copyright infringement. Furthermore, the court found that the jury's instruction exacerbated the error that an act is done 'willfully' if done deliberately and purposefully rather than by mistake or accident. The court concluded that the district court erred in defining willfulness so that the jury might have convicted the defendant without finding that he knew his activities were illegal.
Infringement of extraterritorial IP
The territorial character of copyright grants owners rights only inside a particular region. If the actions of infringement occurred entirely outside of the United States, the United States Copyright Act would not apply. On the other hand, the online environment encompasses activities and individuals from many jurisdictions. Unless the infringer - or service the infringer employs for performing the acts - restricts the region where the consequences could be felt, the copyright-infringing activities conducted online" can generate territorially boundless effects.
In Spanski Enterprises v. Telewizja Polska 434 U.S. App. D.C. 326, 883 F.3d 904 (2018), the court held that the defendant infringed on one of the plaintiff's rights when, without authorisation, the defendant made TV programmes protected by copyright available to stream inside the United States, even though the stream was hosted outside the United States. For starters, the extradition of defendants is a crucial part of these cases, as demonstrated by the Dotcom case SC 57/2018. The extradition of the defendant, the Mega Conspiracy's leader, a Finnish and German national who has lived in New Zealand and Hong Kong, began in 2012 and only ended in 2020.
Article on Criminal Copyright Infringement: Forms, Extent, and Prosecution in the United States by IOANA VASIU & LUCIAN VASIU
The Relevance of Criminal Law in Intellectual Property Law Research by Ajay K. Sharma and Dipa Dube