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.
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.
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.
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.
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.
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
There are other remedies, including a court order barring the infringer from making further copies or an order to destroy unauthorized copies. 16
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
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