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Criminal Copyright Infringement: Improper Punishments from an Improper Analogy to Theft

Serge Subach*
ABSTRACT Though copyright infringement is normally dealt with in civil courts, some infringements are prosecuted in criminal courts. Specifically, a moderate amount of willful copyright infringement is punishable by up to ten years in prison. It is wrong to lock people in a prison if it serves no purpose and does not align with any theory of punishment. The vast majority of copyright infringers are non-violent and have no connection to controlled substances; nor is there evidence to suggest prison sentences properly deter the committing of this crime. Additionally, those convicted often are forced to pay restitution fines to the copyright owners, calculated based on retail price. Although copyright infringement is a serious crime that law enforcement should try to prevent, the actual harm copyright holders suffer is not related to the price they charge for their products, nor is the harm similar to the theft of real property. The proper channel for copyright holders to recoup their losses is in civil court; the criminal justice system should not be burdened with obtaining large amounts of sales for private corporations. If the criminals pose no danger to themselves or others, where there is no justifiable reason for locking them up, then they should not be locked up. If the harm caused by these criminals is unrelated to the retail value of products the victim sells, then that should not be a basis for calculating criminal fines. I. INTRODUCTION Congress is vested with the power to regulate copyright in the Constitution.1 Specifically, copyright protects original works of authorship that are
* Candidate for J.D., New England Law | Boston (2014); B.S. Mechanical Engineering Technology, Northeaster University (2009). I would like to thank my parents, Alla and Vladimir, for their wonderful support; and the New England Journal on Criminal and Civil

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fixed in a tangible form of expression.2 Types of works protected are literary works, musical compositions, plays, motion pictures, sound recordings, architectural works, photographs, visual art, and computer software.3 Even yoga poses and tattoos can enjoy copyright protection.4 Copyright protects the expression of an idea, but does not protect the idea itself.5 A copyright owner possesses the right to exclude others from making, distributing, performing, and displaying the copyrighted work.6 Currently in most cases, copyrights expire seventy years after the death of the author.7 One way Congress regulates copyright is by criminalizing certain types of copyright infringement.8 Over the past century, Congress revised the statutes dealing with copyright.9 These changes include broadening the scope of criminal copyright infringement as well as increasing the penalties for those found guilty.10 This Note will argue that the current scheme of punishments for criminal copyright infringement, which calls for prison sentences and restitution fines, is inadequate at preventing its target crimes and often imposes inappropriate punishments. Part II of this Note will provide a background overview of the laws concerning criminal copyright infringement and the theories of imposing certain punishments. Part III of this Note will argue that copyright infringement is different from other types of property theftimposing long prison sentences on criminal copyright infringers does not fit into any of the theories for imprisonmentand the methods of calculating retribution fines on criminal copyright infringers is misguided. Part IV will conclude this Note. The main issue is that copyright infringement is often analogized to theft of real tangible property.11 However, the property protected by copyright is

Confinement Editors and Associates for their tireless efforts. 1. U.S. CONST. art. I, 8, cl. 8. (indicating that Congress has the power [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.). 2. 17 U.S.C. 102(a) (1990). 3. Id. 102. 4. STUART P. GREEN, THIRTEEN WAYS TO STEAL A BICYCLE: THEFT LAW IN THE INFORMATION AGE 253 (2012). 5. 17 U.S.C. 102(b); Feist Publns, Inc. v. Rural Tel. Servs. Co., 499 U.S. 340, 350 (1996) (stating that patent law protects ideas and not their expression). Compare 17 U.S.C. 102, with 35 U.S.C. 101 (1952). 6. 17 U.S.C. 106 (2002); GREEN, supra note 4, at 253. 7. 17 U.S.C. 302(a) (1998). 8. Id. 506; 18 U.S.C. 2319 (2008). 9. Katherine Barr et al., Intellectual Property Crimes, 40 AM. CRIM. L. REV. 771, 789-90 (2003). 10. Id. at 790. 11. GREEN, supra note 4, at 246-47.

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not real tangible property because when one infringes a copyright, they do not prevent the owner or anyone else from using or enjoying that same copyright.12 Copyright cant be used up; it cant run out of space.13 For these reasons, it would be more helpful to align criminal copyright infringement sanctions to mirror trespass, a worthier analogy to copyright infringement.14 II. BACKGROUND ON CRIMINAL COPYRIGHT INFRINGEMENT A. History of Criminal Copyright Law Copyright infringement was first federally criminalized in 1897.15 Initially, for the copyright infringement to be criminal, the government needed to prove that the infringement was willful and undertaken for a profit.16 Further, the scope of criminal copyright infringement was limited to only unlawful performances and representations of copyrighted dramatic and musical compositions; infringement of other types of copyrighted works were not criminal and were only litigated in civil court.17 Congress began its venture to broaden the scope of criminal copyright infringement with the Copyright Act of 1909.18 First, the Copyright Act of 1909 expanded the types of infringement criminalized by covering all types of copyright works except for sound recordings.19 Congress did not change the mens rea requirement, so the government still needed to prove that the infringement was willful and for profit in order for it to be criminal.20 This Act stayed in place for the next half-century.21 According to estimations of the House of Representatives Judiciary Committee in 1971, over $100 million worth of music was pirated.22 Thus, Congress again broadened the scope of copyrightable works covered by the criminal statute by including

Id. at 209. Id. Id. at 132-33. See Act of Jan. 6, 1897, ch. 4, 29 Stat. 481 (1897). Id. at 481-82. Id. See Copyright Act of 1909, ch. 320, 35 Stat. 1075-82 (1909). Id. 5. Sound recordings were intentionally not covered because the compulsory license provisions required anyone who recorded a song to pay the composer; therefore, it was thought only the composer of a song needed the protection of a criminal statute. Id. 1(e), 25(e). 20. Id. 28. 21. Mary Jane Saunders, Criminal Copyright Infringement and the Copyright Felony Act, 71 DENV. U. L. REV. 671, 673 (1994). 22. See H.R. REP. NO. 487, at 2 (1971), reprinted in 1971 U.S.C.C.A.N. 1566, 1567.

12. 13. 14. 15. 16. 17. 18. 19.

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sound recordings.23 The mens rea requirement was relaxed in the Copyright Act of 1976 by altering the profit requirement.24 Under the new standard, the government had to prove that the infringement was willful and undertaken for the purpose of commercial advantage or private financial gain.25 Thus, the government was no longer required to prove that an alleged infringer actually profited from the infringement, only that the alleged infringers actions were to achieve financial gain or benefit.26 Additionally, the Copyright Act of 1976 brought all criminal copyright infringement issues into the federal jurisdiction, officially preempting all state laws on the matter.27 Under the Copyright Act of 1976, an offender faced a fine of $10,000, one year of imprisonment, or both.28 The Act gave courts discretion to increase the fine to $25,000 in the case of sound recordings and motion pictures.29 Repeat offenders faced fines up to $50,000, up to two years of imprisonment, or both.30 The Copyright Felony Act, enacted in 1992, expanded the scope of felony infringement to include all copyrightable works.31 Further, felony sanctions applied to offenders who made ten or more copies with a retail value greater than $2,500 made within a 180-day windowa low threshold.32 Soon thereafter, the No Electronic Theft Act (NET Act) modified the mens rea requirement by making the financial gain element optional.33 The government now has the options of proving that the alleged infringer acted for financial gain or benefit, or that the alleged infringer distributed one or more copies of copyrighted works having a total retail value of $1,000 or more.34 In 2005, the Copyright Act by the Artists Rights and Theft Prevention Act (ART) criminalized the distribution of a work being prepared

Act of Oct. 15, 1971, Pub. L. No. 92-140, 85 Stat. 391. See Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (codified as amended at 17 U.S.C. 506(a) (2008)). 25. Id. 26. See United States v. Cross, 816 F.2d 297, 301 (7th Cir. 1987) (holding that one who did not obtain any private financial gain or benefit from the alleged infringement was still liable for criminal infringement). 27. 17 U.S.C. 301(a) (2000) (stating federal statute preempts state law). 28. 17 U.S.C. 506(a) (1976). 29. Id. 30. 18 U.S.C. 2319(b)(1)(c) (1988). 31. Pub. L. No. 102-561, 106 Stat. 4233 (codified as amended at 18 U.S.C. 2319(b)(c) (2000)). 32. 18 U.S.C. 2319(b). 33. See No Electronic Theft Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 (1997). 34. Id. 2(b) (amending 17 U.S.C. 506(a)).

23. 24.

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for commercial distribution.35 The ART Act was meant to prevent individuals from recording a movie in a public cinema using a handheld camcorder and distributing the recording before the movies commercial distribution.36 Since then, a few other changes to criminal copyright law have occurred, but they have not changed the types of punishments offered.37 In 1990, U.S. revenue lost to software piracy was estimated at $2.4 billion.38 In the two decades since, that number has grown to $59 billion.39 The problem still exists as the current criminal law scheme seems to be ineffective at stopping it. B. Present State of Criminal Copyright Law Today, 17 U.S.C. 506 defines what criminal copyright infringement is.40 Further, 18 U.S.C. 2319 sets the requisite punishments for those who have committed criminal copyright infringement.41 Under 17 U.S.C. 506(a)(1), criminal copyright infringement is when one infringes a copyright willfully:
(A) for purposes of commercial advantage or private financial gain; (B) 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 copyrighted works, which have a total retail value of more than $1,000; or (C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.42

Depending on which way the defendant has criminally infringed the

Pub. L. No. 109-9, tit. I, 103, 119 Stat. 218, 220 (2005). H.R. REP. NO. 109-33, pt. 1, at 4 (2005), reprinted in 2005 U.S.C.C.A.N. 220, 223. The Digital Millenium Copyright Act (DMCA) criminalizes circumventing copyright protection schemes and contains several exceptions outside the scope of this Note. Digital Millenium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2876 (1998) (codified as amended at 17 U.S.C. 512 (1998)). 38. Criminal Sanctions For Violation of Software Copyright: Hearings on S. 893 Before the Subcomm. on Intellectual Prop. and Judicial Admin. of the H. Comm. on the Judiciary, 102nd Cong. 2 (1992) (statement of Gail Penner on behalf of the Software Publishers Association). 39. Fahmida Y. Rashid, Software Piracy Costs $59B in Lost Revenue, May Be Even Higher: Survey, EWEEK (May 12, 2011), http://www.eweek.com/c/a/Security/SoftwarePiracy-Costs-59-Bn-in-Lost-Revenue-May-Be-Even-Higher-Survey-272553/. 40. See 17 U.S.C. 506 (2008); H.R. REP. NO. 102-997, at 3572 (1992). 41. See 18 U.S.C. 2319(a) (2008); H.R. REP. NO. 102-997, at 3572. 42. 17 U.S.C. 506(a)(1).
35. 36. 37.

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copyright, the punishment can be up to five years of imprisonment for a first offense, or up to ten years of imprisonment for a second offense.43 Fines can be up to $250,000 for an individual and may be combined with an imprisonment term.44 In order to prove criminal copyright infringement, the government carries the burden of proving: (1) a valid copyright exists; (2) infringement of the copyright; (3) the infringement was willful; and (4) either (a) infringement was undertaken for commercial advantage or financial gain, (b) defendant reproduced or distributed one or more copies of copyrighted works totaling over $1,000 at retail over a 180-day period, or (c) defendant distributed a work being prepared for commercial distribution where he knew or should have known the work was intended for commercial distribution.45 The first element is most easily proved by presenting a certificate of registration that has been issued within five years after the works first publication.46 For works not yet published, but intended for commercial distribution, the ART Act allows for preregistration.47 The defendant may rebut the showing of a copyright by proving either that the copyright was obtained by fraud or the work was not statutorily copyrightable.48 Alternatively, the defendant may challenge the authenticity of the copyright certificate.49 The second element, copyright infringement, is primarily proven by showing that the defendant had access to the copyrighted work and that the allegedly infringing copy is substantially similar to the original expression.50 Courts have several other tests for showing the copy in question is infringing.51 This prong is easily satisfied in the types of cases discussed

See 18 U.S.C. 2319(b). 18 U.S.C. 3571 (1987); 18 U.S.C. 2319. United States v. Dadamuratov, 340 F. Appx 540, 545 (11th Cir. 2009); United States v. Manzer, 69 F.3d 222, 227 (8th Cir. 1995); see 17 U.S.C. 506(a)(1). 46. 17 U.S.C. 410(c) (1976); Criminal Resource Manual 1848, JUSTICE.GOV, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01848.htm (last visited Feb. 23, 2013); see also United States v. Taxe, 540 F.2d 961, 966 (9th Cir. 1976) (holding copyright certificate establishes prima facie evidence of a copyright). 47. Pub. L. No. 109-9, Title I, 104, 119 Stat. 218, 221-22 (2005); 17 U.S.C. 408(f) (2005). 48. Criminal Resource Manual 1848, supra note 46. See generally Entmt Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1220-21 (9th Cir. 1997) (invalidating a copyright for lack of originality). 49. See generally United States v. Backer, 134 F.2d 533, 535 (2d Cir. 1943) (investigating the authenticity of a copyright certificate). 50. Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996). 51. Berkla v. Corel Corp., 302 F.3d 909, 924 (9th Cir. 2002) (employing the virtual identity standard); Jacobsen v. Deseret Book Co., 287 F.3d 936, 943 (10th Cir. 2002) (em-

43. 44. 45.

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here, where the infringing copy was a wholesale reproduction of the original expression.52 A defendant accused of distributing copyrighted works need not have been the one to actually produce the infringing copies.53 The third element of proving criminal copyright infringement is willfulness.54 The majority view is that criminal copyright infringement is a specific intent crime and therefore the government must show the defendant specifically intended to violate the copyright law.55 A minority approach is that the government must only show the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility.56 Showing the defendant committed one of the proscribed acts in 17 U.S.C. 506(a)(1)(A)-(C) will prove the fourth and final element of criminal copyright infringement.57 This element requires the government to show either that the defendant acted for commercial advantage or financial gain, that the total retail value of the copies exceeds $1,000 and were produced in a span of 180 days, or that the work is intended for commercial distribution and the defendant knew this when he made the copies publicly available.58 For showing private financial gain, the government is not required to show that the defendant actually realized any profit, but rather that the purpose was realizing profit.59 The easiest way to prove this is by showing some kind of monetary transaction or trading something of value between the infringer and buyer.60 The $1,000 threshold requirement can be met with one or more copies of one or more different infringed works.61
ploying abstraction, filtration, and comparison test). 52. Criminal Resource Manual 1849, JUSTICE.GOV, http://www.justice.gov/ usao/eousa/foia_reading_room/usam/title9/crm01849.htm (last visited Feb. 23, 2013). 53. See United States v. Moore, 604 F.2d 1228, 1234 n.4 (9th Cir. 1979) (explaining that the government does not need to prove defendants reproduced infringing records when it has already proved the defendants distributed the infringing records). 54. 17 U.S.C. 506(a)(1) (2008); Criminal Resource Manual 1850, JUSTICE.GOV, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01850.htm (last visited Feb. 23, 2013). 55. United States v. Moran, 757 F. Supp. 1046, 1050-51 (D. Neb. 1991) (holding that willfully means the defendant intended to violate a known legal duty and a mere intent to copy was insufficient); Saunders, supra note 21, at 688. 56. Twin Peaks Prods., Inc. v. Publns Intl, Ltd., 996 F.2d 1366, 1382 (2d Cir. 1993). 57. 17 U.S.C. 506(a)(1)(A)-(C) (2008); Criminal Resource Manual 1851, JUSTICE.GOV, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01851.htm (last visited Feb. 23, 2013). 58. 17 U.S.C. 506(a)(1). 59. See id. 506(a)(1)(A); United States v. Taxe, 540 F.2d 961 (9th Cir. 1976). 60. Criminal Resource Manual 1851, supra note 57. 61. See H.R. REP. NO. 997, at 6 (1992) (The phrase of one or more copyrighted

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Thus, the government can also satisfy this element by showing that the defendant made one copy of a $1,000 product, two copies of a $500 product, or 2000 copies of a $0.50 product, or any other combination of the above. C. Theories of Punishment Once the government finds that a defendant has criminally infringed a copyright, the courts must state their reasons for imposing a certain kind of punishment.62 There are four common philosophical rationalizations for imposing a punishment on an offender.63 The theories are: (1) deterrence, (2) containment, (3) rehabilitation, and (4) retribution.64 The Sentencing Reform Act specifically does not endorse only one theory of punishment.65 The available punishments for conduct that fall within criminal copyright infringementprison sentences and large finesdo not sufficiently support any of the accepted theories of punishment.66 Deterrence is described in the Sentencing Reform Act as the need to afford adequate deterrence to criminal conduct.67 There are two types of deterrence.68 The theory of general deterrence is that by punishing one offender, society makes an example of him and others will fear the same result and refrain from offending.69 The theory of specific deterrence is that by punishing an offender, he will fear the same result and therefore refrain from offending again.70 Essentially, deterrence is coercion by fear.71 The premise is that people act in accordance with the law not out of respect for it, but rather out of fear of suffering.72 Containment is described in the Sentencing Reform Act as the need to protect the public from further crimes of the defendant.73 The theory of containment is that once an offender commits a crime, he is presumed to commit more crimes in the future and therefore should be preemptively

works is intended to permit aggregation of different works of authorship to meet the required number of copies and retail value.). 62. See 18 U.S.C. 3553(c) (2010). 63. Richard Lowell Nygaard, Crime, Pain, and Punishment: A Skeptics View, 102 DICK. L. REV. 355, 361 (1998). 64. Id. 65. S. REP. NO. 98-225, at 77 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3260. 66. See infra Part III. 67. 18 U.S.C. 3553(a)(2)(B). 68. Nygaard, supra note 63. 69. Id. 70. Id. 71. Id. 72. Id. 73. 18 U.S.C. 3553(a)(2)(C) (2010).

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punished.74 The premise is that a small number of individuals commit the majority of crimes, and that society will benefit if these particular individuals are removed from it.75 The purpose of rehabilitation under the Sentencing Reform Act is to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.76 The theory of rehabilitation is that by providing the offender with treatment we can modify the offenders future behavior.77 This theory is rarely practiced today because historically it was premised on the flawed belief that criminal offenders could be changed.78 Finally, retribution is described in the Sentencing Reform Act as the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.79 The theory of retribution is that offenders should be punished because they deserve to suffer for violating the social order, and society is angry with them.80 Underlying this theory is that the punishment is for the benefit of society; the desire to get even.81 Unlike the other theories, retribution is the only theory that looks backward to the crime already committed.82 D. Analysis of Recent Cases of Individuals Sentenced for Copyright Infringement Aaron Swartz recently made headlines with his tragic story.83 Swartz was an internet folk hero,84 one of the creators of RSS,85 and a believer
Nygaard, supra note 63, at 362. Rudy Haapanen et al., Serious Juvenile Offenders and Persistent Criminality, in THE DEVELOPMENT OF PERSISTENT CRIMINALITY 338 (Joanne Savage ed., 2009). 76. 18 U.S.C. 3553(a)(2)(D). 77. Nygaard, supra note 63, at 362. 78. Id. 79. 18 U.S.C. 3553(a)(2)(A). 80. Nygaard, supra note 63, at 363. 81. Id.; GREEN, supra note 4, at 71. 82. Nygaard, supra note 63, at 363. 83. John Schwartz, Internet Activist, a Creator of RSS, Is Dead at 26, Apparently a Suicide, N.Y. TIMES (Jan. 12, 2013), http://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at26.html?_r=0. 84. Id. 85. RSS is a ubiquitous web standard that allows efficient delivery of news articles and blog posts to end-users. See MERRIAM-WEBSTER, RSS, available at http://www.merriam-webster.com/dictionary/rss (last visited Sep. 5, 2013); see also Alex Dobuzinskis & P.J. Huffstutter, Internet Activist, Programmer Aaron Swartz Dead at 26, REUTERS (Jan. 12, 2013), http://www.reuters.com/article/2013/01/12/net-us-swartz-internet74. 75.

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of freely sharing all information for the good of society.86 In 2011, Swartz was indicted by a federal grand jury of various crimes relating to his alleged stealing and intent to distribute millions of academic articles and journals from an online repository called JSTOR.87 Although JSTOR decided not to file a civil action again Swartz, he faced up to thirty-five years in prison and a $1 million fine if convicted, and ultimately took his own life.88 Swartzs close friends and family blame his suicide on the unreasonable intimidation he received from the U.S. Attorney prosecuting his case.89 Although Swartzs story illustrates an extreme reaction, the tremendous penalty he faced for relatively innocuous actions is common.90 In 2001, an individual was initially sentenced to five years imprisonment and ordered to pay $265,000 in restitution to Microsoft for selling pirated software with a retail value of that amount.91 In 2004, a husband and wife were sentenced to four years and three years imprisonment, respectively, for making and renting unauthorized copies of movies on DVD and VHS cassette.92 In 2007, a grocery store owner was sentenced to two years of imprisonment for renting illegally downloaded movies to customers.93 The grocery store owner was so unaware that his actions constituted a crime that he willingly turned over to the police the infringing movies and a logbook of movie rentals when the police officer was responding to an unrelated incident with a difficult customer.94 In 2012, a first-time offender was sentenced to three and a half years imprisonment for selling several hundred pirated copies of an Adobe software product.95 Recently a thirty-seven year old man was sentenced to fifteen years imprisonment for his second criminal copyright offense when an undercover agent bought five pirated movie DVDs and one pirated music CD from him.96 Although there is no
idUSBRE90B0G320130112. 86. Dobuzinskis & Huffstutter, supra note 85. 87. Id. 88. Id. 89. Official Statement from Family and Partner of Aaron Swartz, REMEMBER AARON SWARTZ, http://www.rememberaaronsw.com/ (last visited Sept. 5, 2013). 90. Trevor Timm, Congress New CFAA Draft Could Have Put Aaron Swartz in Jail For Decades Longer Than the Original Charges, ELECTRONIC FRONTIER FOUND. (Mar. 27, 2013), https://www.eff.org/deeplinks/2013/03/congress-new-cfaa-draft-could-have-putaaron-swartz-jail-decades-longer-he-was. 91. United States v. Kononchuk, 485 F.3d 199, 201-02 (3d Cir. 2007). 92. United States v. Beltran, 503 F.3d 1, 1-2 (1st Cir. 2007). 93. United States v. Dadamuratov, 340 F. Appx 540, 541-42, 545 (11th Cir. 2009). 94. Id. at 542. 95. Sentencing Memorandum at 1, 6, United States v. Anderson, No. CR 09-01015 EJD (N.D. Cal. Jun. 18, 2012). 96. Anatol Rahman, Man Sentenced 15-Year Jail Time For Selling Pirated CD, DVD

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dispute that any of the defendants in these cases are guilty of criminal copyright infringement,97 the cases illustrate the actual severity of punishments similar defendants can expect. III. ARGUMENT A. Criminal Infringement of a Copyright is Dissimilar to Theft of Real Property Willful infringement of a copyright in a number of circumstances is certainly a crime, and this Note does not argue against that fact.98 However, crimes against intellectual property should be treated differently from crimes against real property because of fundamental differences in rights afforded to owners of real property versus intellectual property.99 Consider the following: in one scenario Offender A makes some number of infringing copies of a copyrighted work for the purpose of profiting financially. In a second scenario, Offender B walks into a store and steals a few legitimate copies of a copyrighted work off the shelf, also for the purpose of profiting financially. In the first scenario, the copyright owner is certainly harmed, but the extent of the harm is a difficult calculation and is likely wholly unrelated to the actual retail price of the copied product in question.100 In the second scenario, the storeowner is certainly harmed and the retail value of the stolen goods is a reasonable basis for calculating harm.101 In the first scenario, no tangible good was actually taken from the copyright owner; Offender A violated the copyright owners right to exclude others.102 When comparing this scenario to other crimes, it is more accurate to analogize Offender As violation as one of trespass rather than one of larceny.103
In Mississippi, THE TECH J. (Nov. 14, 2012), http://thetechjournal.com/all-homeentertainment/man-sentenced-15-year-jail-time-for-selling-pirated-cd-dvd-inmississippi.xhtml. 97. See United States v. Kononchuk, 485 F.3d 199, 200 (3d Cir. 2007); Beltran, 503 F.3d at 2; Dadamuratov, 340 F. Appx at 544; Copyright Terror: Man Sentenced to 15 Years in Jail for Selling 6 Counterfeit Discs, RT.COM (Nov. 14, 2012), http://rt.com/usa/king-couinterfeit-selling-ip-630/. 98. See 17 U.S.C. 506 (2008); see infra Part III. 99. See Dowling v. United States, 473 U.S. 207, 216-17 (1985). 100. See generally GREEN, supra note 4, at 256 (noting that in copyright infringement, the harmed party is potentially deprived of income, but overall only suffers a limited setback). 101. See generally id. at 75 (noting that misappropriation of a tangible good is a different kind of harm than of an intangible good). 102. See, e.g., 17 U.S.C. 506. 103. Compare McCarty v. Verizon New Eng., Inc., 731 F. Supp. 2d 123, 132 (D. Mass. 2010) (To sustain a claim for trespass a plaintiff must show (1) plaintiffs actual possession of the property at issue and (2) an intentional and illegal entry by defendant.), with Nugent

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Here, Offender A trespassed onto the copyright owners exclusive rights.104 On the contrary, in the second scenario, Offender B has actually taken a real tangible item; he is guilty of common law larceny.105 Blameworthiness is also a relevant factor to consider when distinguishing between theft of real property and infringing intellectual property.106 Theft of intangible property is a modern idea in criminal law.107 Various media organizations have put forth their best efforts to characterize copyright infringement as being thievery.108 Despite their efforts, a study of how blameworthy the public considers certain acts shows that the public considers downloading an infringing copy of an electronic book is less blameworthy than stealing a physical version of that same book from a store.109 Because it is less blameworthy and causes an entirely different scale of harm, copyright infringement should be treated wholly different from theft. B. Prison Sentences for Copyright Infringement are an Inappropriate Form of Punishment Copyright infringers should not be sentenced to imprisonment because none of the theories of punishment justify such action.110 Imprisonment is a particularly harsh punishment and should not be imposed without careful consideration.111 A punishment of imprisonment is not legitimate unless there is a valid philosophical basis for imposing that punishment.112 Although the Sentencing Reform Act does not specifically endorse only one philosophical basis for punishment, it does outline four underlying theories

v. Ashcroft, 367 F.3d 162, 171 (3d Cir. 2004) (Larceny at common law may be defined as the (1) trespassory, (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it.). 104. See GREEN , supra note 4, at 256 (analogizing copyright infringement to sneaking into a lecture hall to hear a lecture). It could be said that Offender A intentionally and illegally entered onto the owners property and deprived him of the right to exclude, amply satisfying the trespass claim. See McCarty, 731 F. Supp. 2d at 132. 105. Offender B took and carried away personal property of another with the intent of stealing it, amply satisfying the common law elements of larceny. See Nugent, 367 F.3d at 171. 106. GREEN , supra note 4, at 204. 107. Id. at 101. 108. Id. at 246-47. 109. Id. at 68. 110. See id. at 71 ([I]t is intrinsically wrong for society to . . . punish blameworthy offenders more harshly than they deserve.). 111. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 6 (2003). 112. Nygaard, supra note 63, at 360.

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of punishment.113 This section will explore the theories of punishment and examine whether they legitimately apply to the crime of criminal copyright infringement. Deterrence as a theory of punishment works but is not necessarily correct.114 Deterrence is coercion by fear in order to get the public in general or the individual to behave desirably.115 As to copyright infringement, deterrence would function in two ways.116 First, general deterrence would discourage others from infringing copyrights when they see one offender receive a harsh punishment for his acts of copyright infringement.117 Second, specific deterrence would discourage an individual who had been punished in the past from infringing copyrights again.118 The trouble with this theory is that it is not known how it works exactly, and a lack of understanding could lead to unintended consequences.119 Whether it is the detention, the arrest, the trial, or the punishment process itself that causes the deterrent effect is unknown.120 Further, it is unclear whether imprisonment is particularly better at deterring non-violent crimes such as criminal copyright infringement than other alternative punishments.121 Thus, this theory cannot be the sole basis for imprisoning a copyright infringer.122 If the long, shameful, and expensive process of criminal trial proceedings caused the deterrent effect, then imprisonment would not be legitimate under the theory of deterrence. Containment is appropriate to prevent the offender from offending again.123 The premise of this punishmentthat the offender is presumed to reoffend124is inappropriate in the context of criminal copyright infringement. First, the premise is flawed at inception because it essentially imposes a punishment for something that the individual has not yet done.125 Second, there is evidence that imprisonment itself perpetuates further criminal
113. S. REP. NO. 98-225, at 77 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3260; see supra Part II.C. 114. Nygaard, supra note 63. 115. Id. 116. GREEN , supra note 4, at 71. 117. Id. 118. Id. 119. Nygaard, supra note 63, at 361-62. 120. Id. 121. See GREEN, supra note 4, at 248-49 (explaining that copyright infringement rates over the last few decades are actually decreasing; however, the exact cause of this reduction is unclear and cannot be attributed to criminal sanctions alone). 122. Nygaard, supra note 63, at 361-62. 123. Id. at 362. 124. Id. 125. Id.

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behavior, rather than prevents it.126 Third, containment justifies imprisonment when imprisonment is an effective way of preventing future offenses.127 Imprisonment is an especially effective way of preventing future violent offenses.128 However, criminal copyright infringement is not a violent crime, nor is it associated with other violent crimes.129 Finally, criminal copyright infringers are often required to repay the harmed party.130 It stands to reason that it would be impossible for an offender to repay restitution fines while imprisoned.131 Courts have reduced prison sentences to probation in order to reconcile this issue.132 Thus, containment is not a justification for criminal copyright infringers because it wrongly presumes that they will offend again, while in fact an imprisonment punishment may actually cause offenders to offend again after release.133 Therefore, containment is improper as a theory of punishment for non-violent offenders. The theory of rehabilitation is that punishing the offender will modify his or her behavior.134 However, imprisonment does little to further this goal.135 Imprisonment causes some offenders to become more serious criminals later on for a number of reasons, one of which is the difficulty of finding gainful employment after prison.136 If the criminal copyright statutes punish offenders who infringe copyrights for a profit, and imprisonment actually prevents the offender from finding legal and gainful employment, this demonstrates that the problem is perpetuated rather than solved.137 In order to truly rehabilitate the offender, one would have to design a much more complicated system than what a prison allows.138 Most criminal offenders who change for the better do so in spite of prison, not because of it.139 Thus, imprisonment is the antithesis of rehabilitation, not the cause
126. JENS SRING, AN EXPENSIVE WAY TO MAKE BAD PEOPLE WORSE: AN ESSAY ON PRISON REFORM FROM AN INSIDERS PERSPECTIVE 51-52 (2004). 127. Id. at 51. 128. Id. 129. GREEN, supra note 4, at 246 (discussing that copyright infringement should not be referred to as piracy because it is very dissimilar from a violent theft or kidnapping at sea). 130. United States v. Kononchuk, 485 F.3d 199, 202 (3d Cir. 2007). 131. Id.; SRING, supra note 126, at 1. 132. Kononchuk, 485 F.3d at 202-03. 133. Nygaard, supra note 63, at 362; SRING, supra note 126, at 1. 134. Nygaard, supra note 63, at 362. 135. SRING, supra note 126, at 33. 136. Id. at 51. We know from long experience that if they cant find work, or a home, or help, they are much more likely to commit crime and return to prison. Id. at 1. 137. Id. at 1-2. 138. Id. at 39. 139. Nygaard, supra note 63, at 362.

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of it, and therefore rehabilitation fails as a theory of imposing imprisonment as a punishment for criminal copyright infringement. The final remaining theory of punishment is retribution, which is essentially about revenge.140 This theory can legitimize a punishment but only if the punishment is proportional to the offense.141 Criminal copyright infringement is proportional in nature to common law trespass,142 which is scarcely punished by imprisonment.143 Further, there are better means for exacting revenge on copyright infringers.144 This crime is ripe for punishments such as probation or assigned volunteer work. There are several groups that specialize in helping artists get off the ground and earn a living;145 they could be used to show offenders how much work goes into producing works of art and show them the harm that comes from the infringement. This type of punishment would amply satisfy other theories of punishment because it might rehabilitate the offender into respecting copyrights as property and would deter them and others from committing the crime. Finally, this punishment would aid, not hinder, the possibility of finding legal and gainful employment. Setting up a complex music and movie copying operation requires technological skill, scheduling, time management, and work ethic. These skills should not go to waste in a prison, but should be channeled into a positive use instead. C. Fines for Copyright Infringement are a Misguided Expenditure of Resources In calculating the punishment for criminal copyright infringement, the sentencing guidelines advise the use of retail value.146 Further, retail value is used to calculate fines to be paid back to the copyright owner.147 Specifically, the retail value of the infringed work is chosen as the superior meas140. Id. at 363. Retribution comes from the same place in the heart as revenge and in the same place etymologically. Re means back, and tribuere means to pay. Id. at 363 n.10. 141. Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. CRIM. L. & CRIMINOLOGY 883, 890 (1990). 142. See supra Part III.A. 143. See Mark Theoharis, Trespassing Penalties, CRIMINALDEFENSELAWYER.COM, http://www.criminaldefenselawyer.com/crime-penalties/federal/tresspassing.htm (last visited Mar. 18, 2013). 144. GREEN, supra note 4, at 136 (arguing that civil remedies are appropriate for most infringements of intellectual property). 145. See About BMI, BROAD. MUSIC, INC., http://www.bmi.com/about/ (last visited Apr. 1, 2013); About ASCAP, THE AMERICAN SOCY OF COMPOSERS, AUTHORS, AND PUBLISHERS, http://www.ascap.com/about/ (last visited Apr. 1, 2013); About SESAC, SESAC, INC., http://www.sesac.com/About/About.aspx (last visited Apr. 1, 2013). 146. U.S. SENTENCING GUIDELINES MANUAL 2B5.3 (2013). 147. United States v. Kononchuk, 485 F.3d 199, 201 (3d Cir. 2007).

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ure as compared to the retail value of the infringing work.148 However, the actual harm suffered by a copyright holder may not be so closely linked to the retail value at which a product is sold.149 First, a business considers many factors when setting retail prices.150 Modern pricing strategies look at factors such as competitive tactics, long-term value, and human behavior, in addition to the standard cost considerations.151 These factors are, at best, only tenuously related to the actual harm suffered by copyright owners which is described as brand deterioration, weakened customer relationship, and strained relationship with legitimate resellers.152 For example, a legitimate copy of Adobe Photoshop CS6 Extended software used for the manipulation of digital imagescosts $999 directly from Adobe.153 A legitimate copy of competing, but much less expensive, software called Pixelmator 2.0 costs $14.99 at retail.154 If someone sells a pirated copy of the Adobe software for $15, have they actually stolen a sale worth $999 from Adobe? Suppose a buyer has $15 and needs software for manipulating digital images. The hypothetical buyer then has a choice between spending $15 on pirated Adobe software or legally purchased Pixelmator software. If the buyer purchases the pirated Adobe software for $15, it is really Pixelmator that has been deprived of a sale, and the harm is $15, not $999. Adobes reputation and goodwill have been harmed in that scenario, but putting those in the context of retail price is incorrect.155 Is Adobes reputation and goodwill harmed any less if the pirated software

148. Karen J. Bernstein, Net Zero: The Evisceration of the Sentencing Guidelines Under the No Electronic Theft Act, 27 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 57, 73-74 (2001). Using the retail value of the infringed-upon work rather than the retail value of the infringing work is reasoned to be superior because it allows for fines where the infringing work was offered for free, or at a significantly lower cost. Id. For example, the disparity is strikingly large when 100 copies of a counterfeit Gucci purse are sold for $15 and a real Gucci purse costs significantly more. Id. 149. GREEN, supra note 4, at 256 (arguing that the harm suffered from copyright infringement is a limited setback). 150. Christie Frazier-Coleman, Retail Pricing Strategy: Insights and Opportunities, REVIONICS, http://www.revionics.com/retail-white-papers.aspx (last visited Nov. 12, 2013). 151. Id. 152. Sentencing Memorandum, supra note 95. Selling an infringing copy of a product is analogous to sneaking into a hall to hear a lecture. GREEN, supra note 4, at 255-56. 153. Adobe Photoshop CS 6 | Buying Guide: Product Comparison, ADOBE, http://www.adobe.com/products/photoshop/buying-guide.html (last visited Mar. 13, 2013). 154. PIXELMATOR, http://www.pixelmator.com/ (last visited Mar. 13, 2013). 155. Surely the goodwill and reputation of a company are not proportional to the price they charge for their product. Daugherty v. Allen, 729 N.E.2d 228, 235 (Ind. Ct. App. 2000) (holding that reputation harm is compensable with money damages in a tort action when such harm can be proven).

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was of a student version that costs significantly less in a retail store?156 It is clear from Adobes marketing strategy that many unknown factors weigh in their pricing scheme.157 Meanwhile, harm resulting from stealing a tangible product from a physical store is directly related to the retail value of that item.158 The storeowner was relying on selling that item at the full retail price of that item, and when that item is stolen he is deprived of that payment and also loses whatever he originally paid the manufacturer or distributor for that item.159 This harm is easily quantifiable, and retail price is an adequate measure in this circumstance. Unlike stealing a tangible product that has value, violating a copyright is different and more similar to trespass.160 A copyright is an amorphous piece of property that is not rivalrous.161 This distinctionrivalrousness is the key.162 Things that are practically inexhaustible cannot be stolen in the traditional sense.163 Although copyrights are excludablemeaning it is possible to prevent access by people who have not paid for it164the Supreme Court nevertheless has stated that copyrights should not be treated like a tangible good:
The copyright owner . . . holds no ordinary chattel. A copyright . . . comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. . . . Thus, the property rights of a copyright holder have a character distinct from the possessory interests of the owner of simple goods, wares, [or] merchandise, for the copyright holders dominion is subject to precisely defined limits.165

Therefore, if the property rights are dissimilar, then so should the punishment imposed on criminal infringers.

156. Adobe Products: For Education Customers, ADOBE, http://www.adobe.com/products/catalog/software._sl_idcontentfilter_sl_catalog_sl_education_sl_popular.edu.html (last visited Mar. 13, 2013). 157. Compare Adobe Products: For Education Customers, supra note 156, with Adobe Photoshop CS 6 | Buying Guide: Product Comparison, supra note 153. 158. GREEN, supra note 4, at 74. 159. See generally id. 160. See supra Part III.A. 161. GREEN, supra note 4, at 208. Rivalrous goods are goods the use or consumption of which by one consumer prevents simultaneous consumption by other consumers. Id. 162. Id. at 267. 163. Id. at 267-69. 164. Id. at 209-10. 165. Dowling v. United States, 473 U.S. 207, 216-17 (1985) (alteration in the original) (citation omitted).

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Copyright infringement can easily be dealt with in civil courts.166 Copyright infringement cases are often brought in civil court, where the burden is on the plaintiff to present evidence that a copyright infringement occurred.167 Similarly, when criminal copyright infringement fines are paid to the copyright owner, the copyright owner should be the one to take on the burden of costs of proving infringement rather than the government. Although civil copyright infringement suits may not cover every wrong committed by someone acting with a blameworthy intent, such as wrongs to third parties, other civil claims do.168 Civil fraud, misrepresentation, and fraudulent inducement are all civil remedies available to anyone who has been harmed financially by a copyright infringer.169 If a seller has sold a buyer an infringing copy of Adobe Photoshop, the buyer can sue the seller for misrepresentation if the buyers reliance on material misrepresentations of fact led to the purchase.170 In this scenario, Adobe can also bring a civil statutory infringement action against the seller.171 Thus, the harm a copyright owner suffers from infringement is unrelated to the retail value of the product being infringed and there are proper civil remedies available. Further, the property interest in a copyright is different from the property interest in common goods. With this set of facts, it is improper to impose criminal fines based on the retail value of the item infringed for criminal copyright infringement. IV. CONCLUSION While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft.172 Theft is a wrong of a property owners Lockean rights in his property.173 Copyright infringement encompasses a unique type of property, and therefore should be treated differently.174 The available punishments for conduct that falls within criminal copyright infringementprison sentences and large finesdo not sufficiently support any of the accepted theories of pun-

166. 167. 168. 169. 170. 171. 172. 173. 174.

See generally, GREEN, supra note 4, at 132-33. See 17 U.S.C. 501 (2002). GREEN, supra note 4, at 136-38. See generally id. GREEN, supra note 4, at 136. Id. See 17 U.S.C. 501. Dowling v. United States, 473 U.S. 207, 217-18 (1985). GREEN, supra note 4, at 93. See Dowling, 473 U.S. at 216-17.

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ishment.175 Further, fines for criminal copyright infringement are based on the retail value of the infringed item; a measure of damages wholly unrelated to the actual harm suffered.176 Instead of conceptualizing criminal copyright infringement as theft, it is more accurate to conceptualize it as trespass and calibrate the criminal sanctions accordingly.177 It is wrong to punish someone when their blameworthiness is not in proportion to their punishment.178 It is also a waste of public resources to impose criminal sanctions on offenders who cause damages that are easily compensable, have proper civil laws and remedies, and where the offender is non-violent. Civil remedies exist for copyright holders to right the wrongs caused to them by infringers. Civil remedies also exist for any other ancillary harm that might result from copyright infringement. The burden for enforcing basic copyright infringements should be properly put on the property owners. For example, the government should not have been able to pressure and threaten Aaron Swartz with unreasonably high prison sentences and fines when the harmed party, JSTOR, had given him forgiveness for a purely monetary harm.179 The current scheme of punishment for criminal copyright infringement is broken because it calls for prison sentences where they are inappropriate and restitution fines where civil fines are adequate.

175. 176. 177. 178. 179.

See supra Part III. Bernstein, supra note 148. GREEN, supra note 4, at 132-33. See id. at 71. Dobuzinskis & Huffstutter, supra note 85.