Online piracy involves downloading and distributing copyrighted digital works without the copyright owner’s permission. It is a type of copyright infringement. Music is among the most popular items to download illegally. Software and movies are also popular targets for online piracy.
Copyright piracy existed long before the creation of the Internet, but the popularity of online piracy has grown as the use of the Internet has exploded. Although online piracy is clearly illegal in most developed countries, including the U.S., online piracy is still popular, maybe because it is easy to do. People who practice online piracy may profit from the sale of illegally downloaded material. Or, at least, they save money. Adobe and Microsoft Office software are some of the most pirated.
There are even online sites that offer the use of their servers for free. These allow downloading of movies and music completely without charge. The creators of the work are never paid. Some examples are Kazaa, IMesh, and others. Of course, again, the activity violates internet piracy laws, and it is done at a huge cost to the musicians and movie producers who take the loss. Arguably, it is a form of theft.
The U.S. Chamber of Commerce sponsored a study in 2019 that estimated the U.S. economy loses at least $ 29.2 billion in revenue to global online piracy every year. In 2021, the Digital Citizens Alliance reported that online piracy that offers stolen movies, TV shows, games, and the like earns pirates $1.34 billion in advertising revenues every year. The advertising is reportedly risky and exposes consumers to fraud and malware.
How Can Piracy Be Illegal if So Many People Do It?
Online piracy is a kind of federal copyright infringement. Copyright infringement is the act of using or reproducing material that is protected by copyright without the permission of the person who holds the copyright. The fact that many people engage in online piracy does not change the illegal nature of the act. Shoplifting is illegal, and yet millions of people do it. It remains illegal. Copyright infringement is a kind of theft, and it is unethical in addition to being illegal.
Copyright infringement means that the rights that federal law gives to copyright holders, importantly the right to use their own work exclusively for a set period of time, are violated by a third party.
The fact that many people engage in online piracy does not alter the legal situation. Unfortunately, many individuals fail to understand that online piracy is not only ethically inappropriate but also illegal, perhaps because a copy of an online file is created in the process. The fact that this file is not a visible, tangible thing may be what promotes the sense that nothing is being taken from the creator of the downloaded product.
What Are the Consequences of Online Piracy?
Again, copyright infringement is illegal. Most often, copyright infringement is treated as a civil issue rather than a criminal one. In a civil case, the person who has committed infringement would be liable to pay damages to the copyright owner. In a criminal case, the perpetrator would usually have to pay a fine and/or serve time in prison.
So getting sued for copyright infringement is one possible consequence of online piracy. In order to bring a copyright infringement claim, the person who holds a copyright interest must file a civil lawsuit against an alleged infringer. The person who holds the copyright would have to prove that they hold their interest either as the creator of the work, because it was assigned to them, or because they have a license to use a copyrighted work.
The copyright holder must also claim that the person sued made an unlawful copy of an original element of their copyrighted work. Certainly, copying the entire work would qualify as an infringement.
The federal Copyright Act does not contain a clear definition of infringement. However, courts have defined it to mean any unauthorized use of copyrighted material that is inconsistent with the exclusive rights of a copyright holder. Those rights are as follows:
- To make reproductions of the copyrighted work;
- To make works that are derivative of the original work;
- To distribute copies of the copyrighted work;
- To perform certain copyrighted works in public;
- To demonstrate certain copyrighted works in public;
- To perform the copyrighted work for the purpose of sound recordings;
- To import copies into the United States.
Another possible consequence of online piracy is criminal prosecution for the following violations:
- Infringement on copyright done for the purposes of gaining a commercial advantage or to make money;
- Infringement that results in the production of over one thousand dollars worth of unauthorized copies;
- Infringement of a work that was intended to be commercially distributed, such as a movie, before it has been released.
The punishment for criminal copyright infringement can be imprisonment for 1 to 10 years for a felony conviction or a 2nd offense. A person can also be sentenced to the payment of fines of from $250,000 to $500,000, even for a first offense. Fines can rise to $1,000,000 for a 2nd or subsequent offense.
Of course, involvement in a criminal prosecution means that the perpetrator can be subject to searches and seizures of their homes and places of business by law enforcement looking for evidence of criminal activity.
Are There Any Defenses to Online Piracy?
A successful online piracy civil case would claim that the person who infringed the copyright has done the following:
- Downloaded or used material;
- That is copyrighted;
- Without making payment for the use of the material to the copyright holder.
The law recognizes several defenses to a claim of civil copyright infringement as follows:
- Fair Use Doctrine: The Fair Use Doctrine recognizes that people have the right to make use of copyrighted material if the use is for educational purposes or satire. Fair use can also be for the purpose of commenting on, criticizing, or parodying a copyrighted work;
- Unregistered Copyright: Before a copyright owner can sue for infringement, they must have applied for copyright registration with the Copyright Office, and the Copyright Office must have either granted or refused registration. If an infringement lawsuit is filed before the copyright is registered, it may be dismissed;
- Lack of Originality: A copyright owner has to show that their work was independently created and has at least some degree of creative originality. If they cannot show some degree of originality, they cannot succeed with their infringement lawsuit;
- The Merger Doctrine: A copyright does not protect against other people’s expressions of ideas that can only be expressed in only one or a very few ways;
- Independent Development: It is not copyright infringement if the work that allegedly infringes on copyrighted work has, in fact, been independently created, even if the work is identical. In other words, if a person creates their own work independently without any knowledge of the copyrighted work, there is no infringement;
- No Knowledge or Intent: If the downloader didn’t intend to infringe on copyright, some or all the damages demanded may be waived.
Should I Get an Attorney if I Am Accused of Online Piracy?
If you have been sued in a civil case for copyright infringement, you want to consult an experienced entertainment attorney to learn more about your rights and any possible defenses that may be available to you. LegalMatch.com can connect you with a lawyer who can make an expert review of the facts of your case and advise you as to the best way forward.
If you have been charged with criminal copyright infringement, you want to consult a criminal defense lawyer. Your lawyer can identify defense to criminal infringement that may be available to you. They can represent you in plea negotiations and at trial if that should be necessary. Again, LegalMatch.com can connect you to a criminal defense lawyer who has the expertise you need.
