Topics Covered

• Civil Liability
• Types of Civil Liability
• Damages
• Attorney's Fees and Court Costs
• Other Remedies
• Criminal Liability

Civil Liability

If anyone exercises without permission a copyright holder's exclusive rights, such as copying or performing the work, the copyright holder may file a civil lawsuit in a U.S. federal district court charging that person with copyright infringement. If the copyright holder wins the lawsuit, the court will enter a judgment against the party accused of infringing the copyright. The judgment may contain a number of financial and other penalties, including payment of statutory or actual damages, payment of profits attributable to the infringement, payment of attorneys fees and court costs, and injunctive relief that may include the seizure and destruction of the infringing materials.

In order to have access to all potential remedies for copyright infringement, the copyright holder must have registered the work with the U.S. Copyright Office prior to the date of the infringement.

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Types of Civil Liability

There are three types of civil liability in copyright infringement cases. The type(s) of liability depend on the activities and knowledge of the parties who are being accused of infringement.

• Direct Infringement - The copyright holder must prove that s/he owns the infringed copyright and that the accused infringer violated one or more of the copyright's exclusive rights. The copyright holder must first prove direct infringement in order to make further claims of contributory or vicarious infringement.
• Contributory Infringement - The infringer is liable to the copyright holder if it is proved s/he engaged in personal conduct that encouraged or assisted the infringement. In this type 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.
• Vicarious Infringement - The copyright holder has to prove that the infringer had the right and ability to supervise the activities that infringed the copyright and had a financial interest in those activities.

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Damages

Once the court decides that the accused infringer is liable, the next phase is to determine what damages the copyright holder should receive. Section 504 of the U.S. copyright law gives the copyright holder the choice of recovering the following:

• actual damages and the infringer's profits, or
• statutory damages, ranging from $750 to $30,000 for each infringing copy. If the copyright holder can prove that the infringement was committed "willfully," the court has the discretion to increase statutory damages up to $150,000 per infringing copy.

In order to qualify for choosing statutory damages, the copyright holder must have registered the infringed work with the U.S. Copyright Office prior to the date of the infringement. If the work was not registered, then the copyright holder can only recover actual damages and the infringer's profits.

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Attorney's Fees and Court Costs

If the work was registered with the U.S. Copyright Office and the infringement occurred after the registration date, Section 505 gives the court the discretion to award reasonable attorney's fees and court costs to the copyright holder.

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Other Remedies

Sections 502 and 503 detail other remedies, including a court order barring the infringer from making further copies and an order to seize and destroy unauthorized copies.

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Criminal Liability

Section 506 of the U.S. copyright law and Section 2319 of Title 18 of the United States Code (Crimes and Criminal Procedure) specify criminal liability for willfully infringing copyright.

• 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.
• Repeat offenses can lead to longer periods of imprisonment.

Criminal penalties specifically apply to making copies of materials by computer on the Internet such as music, movie, and software files. Gettysburg College prohibits the use of college information technology resources for such purposes.

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Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.

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