Copyright Infringement: What Are the Possible Punishments?

Copyright Infringement: What Are the Possible Punishments?

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  1. What Happens If a Copyright is Infringed?

    In the event someone infringes (violates) the exclusive rights of a copyright owner, the owner is entitled to file a lawsuit in federal court asking the court to: issue orders (restraining orders and injunctions) to prevent further violations, award money damages if appropriate, and in some circumstances, award attorney fees.

    Whether the lawsuit will be effective and whether damages will be awarded depends on whether the alleged infringer can raise one or more legal defenses to the charge. Common legal defenses to copyright infringement are: too much time has elapsed between the infringing act and the lawsuit (the statute of limitations defense), the infringement is allowed under the fair use defense, the infringement was innocent (the infringer had no reason to know the work was protected by copyright), the infringing work was independently created (that is, it wasn’t copied from the original), or the copyright owner authorized the use in a license.

    Infringement Action

    A party who claims to own a mark (the plaintiff) may file a lawsuit against another user of the same or similar mark (the defendant) to prevent further use of the mark and collect money damages for the wrongful use. An infringement action may be brought in state court or in federal court, if the mark in question is protected under the Lanham Act, which applies to both registered and unregistered marks that are used in commerce that Congress may regulate.

    The success of an infringement action normally turns on whether the defendant’s use causes a likelihood of confusion and so weakens the value of the plaintiff’s mark. A mark need not be identical to one already in use to infringe upon the owner’s rights. If the proposed mark is similar enough to the earlier mark to risk confusing the average consumer, its use may constitute infringement if the services or goods on which the two marks are used are related to each other—that is, they share the same market.

    The extent of damages awarded in an infringement action will usually depend on whether the infringement was willful and on the actual amount of harm that the plaintiff can prove.

    Innocent Infringement of Copyright

    Because the copyright laws afford protection to an original work of authorship as soon as it has become fixed in a tangible medium of expression, copyright infringement can easily be accidental. This is especially true if the copyright owner has failed to place a copyright notice on the work.

    Innocent infringement should be distinguished from the fair use doctrine, where infringement is excused because of the nature of the material and the context in which it was used.

    Criminal Copyright Infringement

    Infringement of a copyright can be treated as a federal crime under the Copyright Act of 1976 (17 United States Code, Section 506) if it is done intentionally and with full knowledge that an infringement is occurring. As a practical matter, the U.S. Department of Justice only brings criminal charges against copyright infringers when a large amount of money is at stake, and the purpose of the infringement is commercial gain.

    Most enforcement of the copyright laws is civil in nature, which involves detecting infringing activity and, if necessary, bringing copyright infringement lawsuits in federal court.

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