9-71.010
Prosecution Policy
In determining whether to proceed with a criminal copyright
prosecution, the United States Attorneys should evaluate several
important considerations. First, federal law preempts much of the
copyright field. See 17 U.S.C. § 301.
With federal preemption of copyright protection, prosecutors must
now recognize that individuals harmed by copyright violations are
unlikely to have recourse to state criminal laws. In most
instances, criminal prosecution of copyright offenders is possible
only within the federal system. United States Attorneys should keep
this factor in mind when considering whether to decline prosecution
in a copyright case. Thus, a decision by the United States Attorney
to decline prosecution in a copyright matter may foreclose all
avenues of criminal prosecution. This consideration suggests that
all criminal copyright matters should receive careful attention.
See the Criminal Resource Manual at 1844
for a more in depth discussion of preemption.
Second, the criminal penalties of 17 U.S.C. § 506(a)
for willful infringements undertaken for purposes of commercial
advantage or private financial gain, form an important part of the
copyright enforcement scheme. An increased need for deterrence in
this area is reflected in the 1982 enactment of felony penalties
for piracy and counterfeiting of sound recordings and audiovisual
works. See 18 U.S.C. § 2319. Consequently all
meritorious cases which fall within the parameters of these felony
statutes should receive serious consideration.
Once the technical elements of the offense appear to be
satisfied, the United States Attorney is, of course, free to
consider additional equitable factors in determining whether to
pursue a criminal copyright prosecution.
- The seriousness of the offense:
Felony
penalties for first offenses begin at seven copies for audiovisual
works, and one hundred copies for sound recordings. In this
context, prosecution of felony offenses of comparatively moderate
scale may have substantial deterrent impact. It should also be kept
in mind that lesser volumes of counterfeiting or pirating activity
may suitably lend themselves to the plea bargaining process in
particular cases since 18 U.S.C. § 2319(b)(3) provides
misdemeanor penalties upon conviction for the first offense. A
misdemeanor plea also serves a deterrent function because of the
prospect of felony charges for a future offense. Prosecutions
focused on the most serious offenders should, of course, be given
top priority. Thus, appropriate factors should include the nature
and volume of the infringing activity or a prior history of similar
conduct by the suspect. Individuals who have continued to infringe
for financial gain after civil remedies have been successfully
invoked should receive particular attention.
- The likelihood of successful prosecution:
An
unsuccessful prosecution may be counterproductive not only in terms
of allocation of resources, but also with respect to deterrence.
The presence of legal or evidentiary problems should be carefully
evaluated, particularly with regard to criminal intent. A suspect
actually involved in the manufacture and distribution of infringing
works would be a promising candidate for criminal prosecution,
since the possession and use of elaborate duplicating equipment and
accessories will normally supply effective evidence of criminal
intent. As to others in the chain of distribution, different proof
of criminal intent is usually required to preclude the successful
assertion of defenses.
A number of special charging considerations may become
pertinent to cases involving violations of intellectual property
rights in electronic environments (such as computer networks), or
cases arising in business environments that involve
employer-employee relationships. See the
Criminal Resource Manual at 1841 (DOJ
Letter of October 11, 1994 regarding Criminal Prosecution of
Copyright Infringement). Special considerations may also arise as
the result of statutory changes of consequence that may occur with
respect to underlying copyright laws. If assistance or legal advice
is needed (or if resource limitations do not permit the handling of
a particular case which otherwise merits prosecutive attention),
prosecutors are encouraged to contact the Computer Crime and
Intellectual Property Section.
9-71.015
Reporting Requirements
The Anticounterfeiting Consumer Protection Act of 1996, Pub. L.
No. 104-153, 110 Stat. 1386 (1996), requires the Attorney General
to provide Congress with detailed information concerning
investigations and prosecutions under the criminal intellectual
property statutes, 18 U.S.C. §§ 2318, 2319, 2319A,
and 2320. See 18 U.S.C. § 2320(e). The
Department is presently developing mechanisms to aid in addressing
these requirements. For more information see the
Criminal Resource Manual at 1842 or contact
the Criminal Division's Computer Crime and Intellectual Property
Section.
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