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Criminal copyright infringement and fair use

Previously on this blog we have discussed criminal copyright infringement. In short, this offense occurs when an individual willfully infringes on a copyright for financial gain, reproduces or distributes work with a total value of more than $1,000, or makes an unpublished work available on a computer. This is a serious criminal charge, and a conviction could lead to prison and hefty fines.

So, what can a defendant do to try to protect themselves when facing allegations of criminal copyright infringement? Claim innocence, for starters, if the alleged individual did not infringe on the copyright. If that is not an option, then it might be worth looking at claiming fair use as a defense. The fair use doctrine looks at a number of factors to determine if the use of the copyrighted work truly harms more than promotes the public good.

The factors that are assessed when determining if copyright infringement occurred are many. Amongst them are the nature of the work, including whether it was created for commercial purposes, the amount of the work that was copied by the alleged infringer, the substantiality of the part of the work that is used when compared to the work in its entirety, and the effect that the alleged infringement has on the potential market and value of the work. Additionally, it is important to note that a fair use argument may also draw the "willful" requirement of the criminal statute to be drawn into question, perhaps thereby raising doubt as to a defendant's guilt.

Copyright infringement is a hot issue, and one that is aggressively pursued. Since there is a lot of grey area regarding fair use, it might be helpful for those accused of criminal copyright infringement to discuss the matter with an experienced California criminal defense attorney.

Source:  Legal Information Institute, "17 U.S. Code § 107 - Limitations on exclusive rights: Fair use ," accessed on Nov. 6, 2015

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