17 U.S.C. § 506 — Criminal offenses

Page 171 TITLE 17—COPYRIGHTS § 506 2. Although, as explained below, an award of min- imum statutory damages may be multiplied if sepa- rate works and separately liable infringers are in- volved in the suit, a single award in the $250 to $10,000 range is to be made ‘‘for all infringements involved in the action.’’ A single infringer of a single work is lia- ble for a single amount between $250 and $10,000, no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series. 3. Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded. For example, if one defendant has infringed three copyrighted works, the copyright owner is entitled to statutory damages of at least $750 and may be award- ed up to $30,000. Subsection (c)(1) makes clear, how- ever, that, although they are regarded as independent works for other purposes, ‘‘all the parts of a compila- tion or derivative work constitute one work’’ for this purpose. Moreover, although the minimum and max- imum amounts are to be multiplied where multiple ‘‘works’’ are involved in the suit, the same is not true with respect to multiple copyrights, multiple owners, multiple exclusive rights, or multiple registrations. This point is especially important since, under a scheme of divisible copyright, it is possible to have the rights of a number of owners of separate ‘‘copy- rights’’ in a single ‘‘work’’ infringed by one act of a defendant. 4. Where the infringements of one work were com- mitted by a single infringer acting individually, a single award of statutory damages would be made. Similarly, where the work was infringed by two or more joint tortfeasors, the bill would make them jointly and severally liable for an amount in the $250 to $10,000 range. However, where separate infringe- ments for which two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate. Clause (2) of section 504(c) provides for exceptional cases in which the maximum award of statutory dam- ages could be raised from $10,000 to $50,000, and in which the minimum recovery could be reduced from $250 to $100. The basic principle underlying this provision is that the courts should be given discretion to increase statutory damages in cases of willful infringement and to lower the minimum where the infringer is innocent. The language of the clause makes clear that in these situations the burden of proving willfulness rests on the copyright owner and that of proving innocence rests on the infringer, and that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts. The ‘‘innocent infringer’’ provision of section 504(c)(2) has been the subject of extensive discussion. The excep- tion, which would allow reduction of minimum statu- tory damages to $100 where the infringer ‘‘was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,’’ is sufficient to protect against unwarranted liability in cases of oc- casional or isolated innocent infringement, and it of- fers adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulner- able to this type of infringement suit. On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant’s claim of innocence. In addition to the general ‘‘innocent infringer’’ provi- sion clause (2) deals with the special situation of teach- ers, librarians, archivists, and public broadcasters, and the nonprofit institutions of which they are a part. Section 504(c)(2) provides that, where such a person or institution infringed copyrighted material in the hon- est belief that what they were doing constituted fair use, the court is precluded from awarding any statu- tory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff. Editorial Notes AMENDMENTS 2010—Subsec. (c)(2). Pub. L. 111–295 substituted ‘‘sec- tion 118(f)’’ for ‘‘subsection (g) of section 118’’. 2004—Subsec. (c)(3). Pub. L. 108–482 added par. (3). 1999—Subsec. (c)(1). Pub. L. 106–160, § 2(1), substituted ‘‘$750’’ for ‘‘$500’’ and ‘‘$30,000’’ for ‘‘$20,000’’. Subsec. (c)(2). Pub. L. 106–160, § 2(2), substituted ‘‘$150,000’’ for ‘‘$100,000’’. 1998—Subsec. (d). Pub. L. 105–298 added subsec. (d). 1997—Subsec. (c)(2). Pub. L. 105–80 substituted ‘‘the court in its discretion’’ for ‘‘the court it its discre- tion’’. 1988—Subsec. (c)(1). Pub. L. 100–568, § 10(b)(1), sub- stituted ‘‘$500’’ for ‘‘$250’’ and ‘‘$20,000’’ for ‘‘$10,000’’. Subsec. (c)(2). Pub. L. 100–568, § 10(b)(2), substituted ‘‘$100,000’’ for ‘‘$50,000’’ and ‘‘$200’’ for ‘‘$100’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–160, § 4, Dec. 9, 1999, 113 Stat. 1774, provided that: ‘‘The amendments made by section 2 [amending this section] shall apply to any action brought on or after the date of the enactment of this Act [Dec. 9, 1999], regardless of the date on which the alleged activ- ity that is the basis of the action occurred.’’ EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–298 effective 90 days after Oct. 27, 1998, see section 207 of Pub. L. 105–298, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title. § 505. Remedies for infringement: Costs and at- torney’s fees In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2586.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Under section 505 the awarding of costs and attor- ney’s fees are left to the court’s discretion, and the sec- tion also makes clear that neither costs nor attorney’s fees can be awarded to or against ‘‘the United States or an officer thereof.’’ § 506. Criminal offenses (a) CRIMINAL INFRINGEMENT.— (1) IN GENERAL.—Any person who willfully infringes a copyright shall be punished as pro- vided under section 2319 of title 18, if the in- fringement was committed— (A) for purposes of commercial advantage or private financial gain; (B) by the reproduction or distribution, in- cluding by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted Page 172 TITLE 17—COPYRIGHTS § 506 works, which have a total retail value of more than $1,000; or (C) by the distribution of a work being pre- pared for commercial distribution, by mak- ing it available on a computer network ac- cessible to members of the public, if such person knew or should have known that the work was intended for commercial distribu- tion. (2) EVIDENCE.—For purposes of this sub- section, evidence of reproduction or distribu- tion of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright. (3) DEFINITION.—In this subsection, the term ‘‘work being prepared for commercial distribu- tion’’ means— (A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unau- thorized distribution— (i) the copyright owner has a reasonable expectation of commercial distribution; and (ii) the copies or phonorecords of the work have not been commercially distrib- uted; or (B) a motion picture, if, at the time of un- authorized distribution, the motion pic- ture— (i) has been made available for viewing in a motion picture exhibition facility; and (ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhi- bition facility. (b) FORFEITURE, DESTRUCTION, AND RESTITU- TION.—Forfeiture, destruction, and restitution relating to this section shall be subject to sec- tion 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law. (c) FRAUDULENT COPYRIGHT NOTICE.—Any per- son who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. (d) FRAUDULENT REMOVAL OF COPYRIGHT NO- TICE.—Any person who, with fraudulent intent, removes or alters any notice of copyright ap- pearing on a copy of a copyrighted work shall be fined not more than $2,500. (e) FALSE REPRESENTATION.—Any person who knowingly makes a false representation of a ma- terial fact in the application for copyright reg- istration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500. (f) RIGHTS OF ATTRIBUTION AND INTEGRITY.— Nothing in this section applies to infringement of the rights conferred by section 106A(a). (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2586; Pub. L. 97–180, § 5, May 24, 1982, 96 Stat. 93; Pub. L. 101–650, title VI, § 606(b), Dec. 1, 1990, 104 Stat. 5131; Pub. L. 105–147, § 2(b), Dec. 16, 1997, 111 Stat. 2678; Pub. L. 109–9, title I, § 103(a), Apr. 27, 2005, 119 Stat. 220; Pub. L. 110–403, title II, § 201(a), Oct. 13, 2008, 122 Stat. 4260.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Four types of criminal offenses actionable under the bill are listed in section 506: willful infringement for profit, fraudulent use of a copyright notice, fraudulent removal of notice, and false representation in connec- tion with a copyright application. The maximum fine on conviction has been increased to $10,000 and, in con- formity with the general pattern of the Criminal Code (18 U.S.C.), no minimum fines have been provided. In addition to or instead of a fine, conviction for criminal infringement under section 506(a) can carry with it a sentence of imprisonment of up to one year. Section 506(b) deals with seizure, forfeiture, and destruction of material involved in cases of criminal infringement. Section 506(a) contains a special provision applying to any person who infringes willfully and for purposes of commercial advantage the copyright in a sound re- cording or a motion picture. For the first such offense a person shall be fined not more than $25,000 or impris- oned for not more than one year, or both. For any sub- sequent offense a person shall be fined not more than $50,000 or imprisoned not more than two years, or both. Editorial Notes AMENDMENTS 2008—Subsec. (b). Pub. L. 110–403 amended subsec. (b) generally. Prior to amendment, text read as follows: ‘‘When any person is convicted of any violation of sub- section (a), the court in its judgment of conviction shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposi- tion of all infringing copies or phonorecords and all im- plements, devices, or equipment used in the manufac- ture of such infringing copies or phonorecords.’’ 2005—Subsec. (a). Pub. L. 109–9 reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘Any person who in- fringes a copyright willfully either— ‘‘(1) for purposes of commercial advantage or pri- vate financial gain, or ‘‘(2) 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 copy- righted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copy- righted work, by itself, shall not be sufficient to estab- lish willful infringement.’’ 1997—Subsec. (a). Pub. L. 105–147 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘(a) CRIMINAL INFRINGEMENT.—Any person who in- fringes a copyright willfully and for purposes of com- mercial advantage or private financial gain shall be punished as provided in section 2319 of title 18.’’ 1990—Subsec. (f). Pub. L. 101–650 added subsec. (f). 1982—Subsec. (a). Pub. L. 97–180 substituted ‘‘shall be punished as provided in section 2319 of title 18’’ for ‘‘shall be fined not more than $10,000 or imprisoned for not more than one year, or both: Provided, however, That any person who infringes willfully and for pur- poses of commercial advantage or private financial gain the copyright in a sound recording afforded by subsections (1), (2), or (3) of section 106 or the copyright in a motion picture afforded by subsections (1), (3), or (4) of section 106 shall be fined not more than $25,000 or imprisoned for not more than one year, or both, for the first such offense and shall be fined not more than $50,000 or imprisoned for not more than two years, or both, for any subsequent offense’’. Page 173 TITLE 17—COPYRIGHTS § 510 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title. § 507. Limitations on actions (a) CRIMINAL PROCEEDINGS.—Except as ex- pressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is com- menced within 5 years after the cause of action arose. (b) CIVIL ACTIONS.—No civil action shall be maintained under the provisions of this title un- less it is commenced within three years after the claim accrued. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2586; Pub. L. 105–147, § 2(c), Dec. 16, 1997, 111 Stat. 2678; Pub. L. 105–304, title I, § 102(e), Oct. 28, 1998, 112 Stat. 2863.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 507, which is substantially identical with sec- tion 115 of the present law [section 115 of former title 17], establishes a three-year statute of limitations for both criminal proceedings and civil actions. The lan- guage of this section, which was adopted by the act of September 7, 1957 (71 Stat. 633) [Pub. L. 85–313, § 1, Sept. 7, 1957, 71 Stat. 633], represents a reconciliation of views, and has therefore been left unaltered. Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–304 substituted ‘‘Except as expressly provided otherwise in this title, no’’ for ‘‘No’’. 1997—Subsec. (a). Pub. L. 105–147 substituted ‘‘5’’ for ‘‘three’’. § 508. Notification of filing and determination of actions (a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notifica- tion to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration number of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed. (b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judg- ment together with the written opinion, if any, of the court. (c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Of- fice. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2586.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 508, which corresponds to some extent with a provision in the patent law (35 U.S.C. 290), is intended to establish a method for notifying the Copyright Of- fice and the public of the filing and disposition of copy- right cases. The clerks of the Federal courts are to no- tify the Copyright Office of the filing of any copyright actions and of their final disposition, and the Copyright Office is to make these notifications a part of its public records. [§ 509. Repealed. Pub. L. 110–403, title II, § 201(b)(1), Oct. 13, 2008, 122 Stat. 4260] Section, Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2587; Pub. L. 105–80, § 12(a)(14), Nov. 13, 1997, 111 Stat. 1535, related to seizure and forfeiture. § 510. Remedies for alteration of programming by cable systems (a) In any action filed pursuant to section 111(c)(3), the following remedies shall be avail- able: (1) Where an action is brought by a party identified in subsections (b) or (c) of section 501, the remedies provided by sections 502 through 505, and the remedy provided by sub- section (b) of this section; and (2) When an action is brought by a party identified in subsection (d) of section 501, the remedies provided by sections 502 and 505, to- gether with any actual damages suffered by such party as a result of the infringement, and the remedy provided by subsection (b) of this section. (b) In any action filed pursuant to section 111(c)(3), the court may decree that, for a period not to exceed thirty days, the cable system shall be deprived of the benefit of a statutory license for one or more distant signals carried by such cable system. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2587; Pub. L. 106–113, div. B, § 1000(a)(9) [title I, § 1011(a)(1), (3)], Nov. 29, 1999, 113 Stat. 1536, 1501A–543.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 509(b) specifies a new discretionary remedy for alteration of programming by cable systems in vio- lation of section 111(c)(3): the court in such cases may decree that, ‘‘for a period not to exceed thirty days, the cable system shall be deprived of the benefit of a com- pulsory license for one or more distant signals carried by such cable system.’’ The term ‘‘distant signals’’ in this provision is intended to have a meaning consistent with the definition of ‘‘distant signal equivalent’’ in section 111. Under section 509(a), four types of plaintiffs are enti- tled to bring an action in cases of alteration of pro- gramming by cable systems in violation of section 111(c)(3). For regular copyright owners and local broad- caster-licensees, the full battery of remedies for in- fringement would be available. The two new classes of potential plaintiffs under section 501(d)—the distant- signal transmitter and other local stations—would be limited to the following remedies: (i) discretionary in- junctions; (ii) discretionary costs and attorney’s fees; (iii) any actual damages the plaintiff can prove were attributable to the act of altering program content; and (iv) the new discretionary remedy of suspension of compulsory licensing.