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Copyright Infringement: What can happen when someone is sued for copyright infringement

The Legal Process

If a copyright holder feels that someone has infringed her copyright, she can begin a lawsuit by filing a "complaint" in a federal district court. Even though registration of a copyright is not required to make it valid, owners must register with the U.S. Copyright Office if they want to sue.

A copyright holder may choose to take some other action first. For instance, she may send a cease and desist letter first, requesting (or demanding) that the person she thinks is infringing stop using her copyrighted work. On the other hand, if she feels that the harm is very serious, she may file for a temporary restraining order ("TRO") or an emergency injunction.

Once the copyright holder has filed a lawsuit, she is now called a plaintiff. The defendant will be "served" a copy of the complaint (this can come through the mail or be delivered by hand), and has a limited amount of time, usually 30 business days, to file an answer to the complaint. The defendant will almost certainly want to find an attorney right away. If the defendant hopes to claim fair use, he should include that as an "affirmative defense" in his answer to the complaint.

In the pre-trial phase, the plaintiff and defendant can file motions (requests) to dismiss the case, various responses to each other's legal documents, and discovery requests. In discovery, the parties may ask for and must provide copies of documents, reports, or other evidence pertaining to the case. A case may be decided before trial, either because the court grants the defendant's motion to dismiss (in which case the defendant wins), or because the court grants "summary judgment" for either the plaintiff or the defendant — meaning that a trial wasn't necessary because there were no facts in dispute, and the judge could make up her mind about the merits of the case "as a matter of law".

If a trial is needed, the judge (or jury, in some cases) will hear all the evidence, and then make a decision, finding that the use was infringing, or was protected by some defense.

Many cases settle before a judgment is rendered, meaning that the plaintiff and the defendant come to an agreement and call off the lawsuit. If they don't settle, and the court issues an opinion, that opinion will often become part of the caselaw on the issue, and may affect other similar cases.

Penalties for Infringement

If a use is found to be a copyright infringement, the court may order any one of a number of possible "remedies" for the copyright holder. These include ordering the use to stop (an injunction), ordering payment of money "damages", or impounding or destroying the infringing copies.

Injunctions

An injunction is a court order that prohibits someone from continuing a particular activity. Violation of an injunction can lead to a finding that the violator is in contempt of court, which may lead to fines or even jail time.

In copyright law, courts may grant injunctions against continuing the infringing activity — for instance, an order to stop distributing a story that violates someone else's copyright; or to stop distributing copies of a song. The injunctions may apply for only ten days (a temporary restraining order, or TRO); until trial or some other temporary period of time (a temporary injunction); or for a longer period (a permanent injunction).

Courts are most likely to issue injunctions when they think that money damages would be insufficient. This is because both copyright law and the First Amendment are intended to facilitate more speech. For instance, if someone is infringing the copyright of something with no monetary value, such as a private letter, enjoining the distribution of the letter might be the only way to help the copyright holder. Some courts prefer to encourage the distribution of the new work as well as the old, but other courts may be freer with injunctions.

Impoundment, Destruction, Seizure & Forfeiture

Infringing goods, or even goods alleged to be infringing, may be impounded at any time during the lawsuit. This includes all copies, film negatives, masters, etc. (17 USC § 502, 17 USC § 509.) If the court determines that the use was infringing, it can order destruction of everything found to infringe. This is likeliest when someone has made multiple exact copies for sale or other distribution, particularly sale.

"Damages", Profits and Attorney's Fees

A court may order that an infringer pay damages and profits to the copyright holder. These can be calculated one of two ways: the actual damages and profits; or, if the copyright work was registered, "statutory" damages including attorney's fees. (17 USC § 504.) Practically speaking, all copyright works will have been registered before filing or during the lawsuit; but only those registered within three months of publication, or before the infringement, can result in statutory damages.

Actual damages include whatever harms or losses the infringer suffered — for instance, the value of lost sales or cancelled contracts. In addition, the court may order the infringer pay any other profits to the copyright holder.

Statutory damages can vary widely. They can be as little as $200 per work infringed if the infringement was innocent. Or they can be as much as $150,000 per work if the infringement was "willful". If neither willful nor innocent, statutory damages may still range from anywhere from $750 to $30,000 per work infringed. (17 USC § 504.)

"Innocent" infringement is only if the infringer "was not aware" and "had no reason to believe" that the copies constituted infringement. (17 USC § 504, 17 USC 504(c)(2).) Libraries and archives, educational institutions, and public broadcasters have special exemptions if they reasonably believed their use was a fair use. (17 USC § 504, 17 USC 504(c)(2).) In one recent peer-to-peer downloading case, a court found that downloading and keeping music files was not an "innocent" infringement because the user could have gone to a record store to see that the works had copyright notices. (BMG Music v. Gonzalez).

"Willful" infringement can occur if the user was aware of the copyright and still consciously chose to copy the work. (17 USC§ 504, 17 USC 504(c)(2).)

Criminal Penalties

There are criminal penalties in copyright law. Criminal penalties apply to reproduction or distribution during any six month period of copies worth $1000 or more, for commercial advantage or private financial gain. If someone is found guilty of repeat criminal copyright infringement, he can be sentenced for up ten years. (17 USC§ 506, 18 USC§ 2319.) Only the government can file criminal penalty charges; private parties will sue for injunctions or damages.

Other Penalties: Circumvention

Other areas of copyright law also have penalties. For instance, there are both civil and criminal penalties for circumventing "a technological measure that effectively controls access" to a copyrighted work. 17 USC§ 1201(a)(1)(A).) This provision of the law, added by the Digital Millennium Copyright Act in 1998, is sometimes called "paracopyright", because circumventing an encryption device or other "technological measure" does not, by itself, interfere with any of a copyright owner's exclusive rights. Instead, the DMCA's "anti-circumvention" provision gives the force of law to "digital rights management" techniques that bar access to copyrighted works, even for uses that are fair. 17 USC§ 1203, 17 USC§ 1204.)

There are also penalties for removing copyright management information from a work — for example, information about the copyright holder or copyright date.