Criminal copyright infringement requires that the infringer acted "for the purpose of commercial advantage or private financial gain." 17 U.S.C. §506(a).
To establish criminal liability, the prosecutor must first show the basic elements of copyright infringement: ownership of a valid copyright, and the violation of one or more of the copyright holder's exclusive rights. The government must then establish that defendant willfully infringed or, in other words, possessed the necessary mens rea. Misdemeanor infringement has a very low threshold in terms of number of copies and the value of the infringed works.
An individual may be liable if the infringement was committed: (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or (C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution. 17 U.S.C. §506(a)(1).
Felony copyright infringement has a slightly higher threshold and possibly serious penalties. 18 U.S.C. §2319(b). (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500; (2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense.
Without establishing the threshold value, legitimate infringement, or the requisite state of mind, there can be no criminal liability. If the defendant can show they had a legitimate copy or use — such as through the first-sale doctrine — then the burden of proof falls on the government.
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