Willfulness

To establish criminal intent in a criminal copyright infringment case, the government must prove that the defendant infringed the copyright willfully. This was intended to require proof of more than general intent and to ensure that, for instance, "an educator who in good faith believes that he or she is engaging in a fair use of copyrighted material could not be prosecuted under the bill."

The Supreme Court has recognized that "willful . . . is a word of many meanings, its construction often being influenced by its context." This was reflected in congressional debate over the No Electronic Theft (NET) Act amendments to the Copyright Act. Senator Hatch, the Chairman of the Senate Judiciary Committee, advocated that in copyright crimes "'willful' ought to mean the intent to violate a known legal duty," because a lower mens rea could cause "the net" of criminal sanctions "[to] be cast too widely." Senator Hatch cited several cases in which the Supreme Court had construed "willfulness" in this fashion when the substantive law was complex, such as Cheek v. United States, in which the Court held that the general principle that "ignorance of the law or a mistake of law is no defense to criminal prosecution," must yield given the complexity of federal criminal tax statutes. In other words, the defendant's good-faith misunderstanding of the legal duties imposed on him by the tax laws would negate a finding of willfulness. This reasoning has been applied in other contexts as well.

A lower standard for "willfulness" was advanced by Representatives Goodlatte and Coble, who introduced and sponsored the bill in the House. They rejected the notion that defendant must be familiar with the copyright code and what constitutes infringement. Rather than require "knowledge" of a legal duty not to infringe, they interpreted willfulness to require only that a defendant have "reckless disregard" for copyrights:


 * The Government should not be required to prove that the defendant was familiar with the criminal copyright statute or violated it intentionally. Particularly in cases of clear infringement, the willfulness standard should be satisfied if there is adequate proof that the defendant acted with reckless disregard of the rights of the copyright holder. In such circumstances, a proclaimed ignorance of the law should not allow the infringer to escape conviction.

Aside from clarifying that evidence of infringement, by itself, does not prove willfulness, Congress has left the term's definition to the courts.

Most courts that have interpreted "willfulness" in criminal copyright cases have adopted the more stringent standard advocated by Senator Hatch: the intentional violation of a known legal duty.

A minority of courts in criminal copyright cases have applied "willfulness" to set a lower bar for prosecution. United States v. Backer, is frequently cited as applying the lower standard, that of merely having the intent to carry out the activities of infringement without knowledge that they constituted infringement. In that case, the defendant had arranged for a manufacturer to duplicate a copyrighted figurine as closely as possible without, in the defendant's words, "copyright trouble." The Second Circuit found the evidence sufficient to support willful infringement, noting there could not "be any fair doubt that the appellant deliberately had the copies made and deliberately sold them for profit."

It is not clear, however, that Backer represents a circuit split. The case can also be read as holding the defendant's mention of "copyright trouble" to be sufficient evidence of his knowledge of a legal duty not to infringe. Moreover, more recent civil copyright cases suggest that the Second Circuit interprets willfulness to require either actual knowledge that the infringement violated the law, or perhaps "constructive knowledge" shown by reckless disregard for whether the conduct violated copyright. This approach is consistent the Seventh Circuit's ruling in United States v. Heilman, a criminal copyright case holding that the government proved willfulness because the defendant "chose to persist in conduct which he knew had a high likelihood of being held by a court of competent jurisdiction to be a violation of a criminal statute."

The majority rule in criminal copyright cases for a higher standard of willfulness is also consistent with civil copyright cases, which likewise hold that willfulness is not just an intent to copy, but rather an intent to infringe. The issue arises in civil cases when plaintiffs attempt to recover increased statutory damages, which are available only for willful infringement. Congress's use of the term "willfulness" in closely proximate sections 504 and 506 of the Copyright Act suggests that the term should be interpreted similarly in both criminal and civil cases.

Given that willfulness requires an intent to infringe, or at least constructive knowledge of infringement plus a reckless disregard of the victim's rights, a finding of willfulness may be precluded if the defendant acted with a good-faith belief that he was not infringing.