DMCA Criminal Violations.

The DMCA’s principal criminal penalties appear in 17 U.S.C. §1204. The DMCA prohibits various acts, and these provisions serve as the basis for criminal prosecutions under section 1204. These acts include:

• Violating Section 1201(a)(1)(A), which prohibits circumventing effective technological measures that control access to a copyrighted work
• Violating Section 1201(a)(2), which prohibits trafficking in technology or devices used to bypass access control software and other protection measures
• Violating Section 1201(b), which prohibits trafficking in technology or devices used to circumvent security or copyright measures
• Violating Section 1202, which prohibits altering or removing copyright management information (CMI) knowing that it will induce, enable, facilitate, or conceal an infringement.

The Requirements for Criminal Liability Under Section 1204

As a general rule, for any of the above-described statutory provisions to be the basis for criminal liability, Section 1204 requires the government to prove that the individual or corporation at issue committed a willful violation, either of section 1201 or section 1202, and committed the violation for purposes of commercial advantage or private financial gain.

The statutory language says :

“Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense.”

Spodek Law Group provides criminal defense in DMCA cases nationwide. If you need representation or have questions about a DMCA investigation, we strongly encourage you to discuss your case with one of our senior federal defense attorneys as soon as possible.

Which §1201 Conduct and Exemptions Matter Before a §1204 Analysis?

Which §1201 conduct matters, and what are the relevant exemptions, before conducting a §1204 criminal liability analysis? The DMCA imposes substantive prohibitions in section 1201 that are subject to specific exemptions. These include:

• Under section 1201(a), the DMCA imposes prohibitions against circumventing access controls and trafficking in devices or services designed for circumvention purposes.
• Under section 1201(a)(1), the DMCA prohibits circumventing effective technological measures that control access to a copyrighted work. This provision’s exemptions are determined every three years by the Librarian of Congress.
• Under section 1201(a)(2), the DMCA prohibits trafficking in devices or services designed or produced for circumvention purposes.
• Under section 1201(b)(1), the DMCA prohibits trafficking in technology and tools to circumvent copyright-protection measures, and these rules apply separately from the act of circumventing technological measures that control access to protected works.

Examples of Section 1201(a)(1) Circumvention Exemptions

The Librarian of Congress has designated numerous exemptions for the act of circumventing access controls that otherwise would qualify as DMCA violations. These include:

• Bypassing security measures that protect access to a work for non-infringing purposes including a use that constitutes fair use under the copyright act
• Bypassing security measures that protect access to a work for the purpose of security testing, for compatibility, or for security research
• Bypassing security measures that protect access to a work as a means of permitting accessibility for people with disabilities or for preserving certain works in the course of archiving activities
• Bypassing security measures that protect access to works that the copyright owner expressly or impliedly authorizes for use for the purposes of certain educational activities, television or radio programming, or as other specified fair-use purposes

The Difference Between Circumventing Access Controls and Bypassing Copyright-Rights Protection Measures

While the DMCA has similar provisions regarding access controls and the circumvention of copyright-rights protection measures, these restrictions apply in different contexts. In general, the act of circumventing access controls is an act of gaining access to a protected work. The act of circumventing copyright-rights protection measures under section 1201(b)(1) is an act of bypassing technological measures designed to prevent copying, distribution, and other forms of copyright infringement.

How Does a DMCA Charge Differ from Criminal Copyright Infringement Under §506?

Criminal copyright infringement is governed principally by 17 U.S.C. §506. This section addresses the criminal penalties for the copyright statute’s various underlying substantive provisions. In particular, under section 506(a)(1), “Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed- (A) for purposes of commercial advantage or private financial gain; (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. works, the total retail value of which is more than $1,000, or

(3) by distributing, including by selling, renting, leasing, offering or offering to rent, lease, or offer to rent, or publicly performing or publicly displaying, during any 180-day period, one or more copies of one or more copyrighted works produced using a computer network and which have not been previously released commercially to the public, and by which the person so infringing provides a conduit for the distribution of copies of copyrighted works to the general public.”

As clear from the statute’s requirements, copyright infringement is treated as a crime when any of the following occur:

• The individual or corporation infringes the copyright statute with the intent to gain commercial advantage or private financial gain
• The individual or corporation reproduces or distributes copyrighted works with a total retail value exceeding $1,000 during any 180-day period
• The individual or corporation makes a work being prepared for commercial distribution available on a computer network accessible to members of the public, knowing or having reason to know that the work was intended for commercial distribution.

As a general rule, the criminal penalties for copyright infringement are equally severe, including the potential for prison sentences and large fines. In all cases, individuals and corporations accused of copyright infringement must take a proactive approach to resolving the accusations against them. While the DMCA’s §1204 criminal penalties are different from these statutory criminal provisions, both require federal prosecutors to meet strict (and very specific) statutory elements in order to maintain criminal charges.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

Why Does Trademark Counterfeiting Fall Under §2320 Instead of the DMCA?

If it’s not a DMCA offense, what is it? Trademark counterfeiting does not fall under the DMCA, and the Lanham Act, which governs trademark issues and enforcement, primarily establishes civil rights and remedies. However, criminal trafficking in counterfeit marks is addressed by 18 U.S.C. §2320. This federal statute addresses criminal trafficking in counterfeit goods or services and provides that whoever intentionally traffics in goods or services while knowingly using a counterfeit mark, or traffics in specified labels or packaging knowing that a counterfeit mark has been applied, commits an offense punishable under subsection (b).

(a) Trafficks in goods or services bearing counterfeit marks, including by removing, altering, or concealing any trademark, registered or unregistered, and including by failing to remove, alter, or conceal any trademark, registered or unregistered, or counterfeit mark, as part of any intent to sell, good or services, knowing or having reason to know, and

(b) Any person who intentionally removes, alters, or conceals any trademark, registered or unregistered, or counterfeit mark or any other designating mark in the label, tag, packaging, emblem, container, or other material associated with a good, and knowingly or has reason to know that such label, tag, packaging, emblem, container, or other material associated with a good is false or fraudulent, and that the purpose of such removal, alteration, or concealment is to facilitate the sale of a good that bears a counterfeit mark, or to conceal or otherwise facilitate the diversion from the owner of the trademark, registered or unregistered, or counterfeit mark of a good that bears such label, tag, packaging, emblem, container, or other material associated with a good.”

Can §1203 Civil Remedies Apply When Prosecutors Bring No Criminal Case?

As is the case with copyright infringement under section 506, DMCA violations can establish civil liability without satisfying the specific statutory requirements of a criminal violation. As a result, even if federal prosecutors do not pursue a criminal case under section 1204, copyright owners may pursue civil remedies under 17 U.S.C. §1203. The statute provides for the following:

• Under 1203(a), “Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.” This provision allows the federal district courts to issue injunctions based on the qualifying circumvention violations at issue.
• Under 1203(b), the statute provides for In an action brought under subsection (a), the court may grant injunctions, impound devices or products, award actual or statutory damages under subsection (c), allow costs, award reasonable attorney's fees to the prevailing party, and order remedial modification or destruction of devices or products involved in the violation. These provisions permit the copyright owner to recover financial damages in cases that would have otherwise produced criminal liability.
• Under section 1203(b)(4) and (5), the court may, in its discretion, allow recovery of costs by or against any party other than the United States or an officer thereof and award reasonable attorney’s fees to the prevailing party.

As with other types of IP infringement, copyright owners are willing to seek civil remedies even if they do not have a case that would satisfy the statutory requirements of criminal liability.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.