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United States Edit

Civil liability Edit

Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act, is an infringer of copyright.[1] Infringement is implicitly defined in 17 U.S.C. §501(a):

Anyone who violates any of the exclusive rights of the copyright owner as provided by [17 U.S.C. §§106-22] or of the author as provided by [17 U.S.C. §106A], or who imports copies or phonorecords into the United States in violation of [17 U.S.C. §602], is an infringer of the copyright.

Consequently, infringement may include more than violation of the rights enumerated in Section 106 (and also include violations of the rights to exclude imports under §602, or the rights of certain authors to attribution and integrity defined in §106A), and at the same time, may not extend to all violations of the rights in Section 106 (because the rights enumerated in §106 are "subject to [the limitations of] §§107 through 122").[2] For instance, activities such as loading a work into a computer, scanning a printed work into a digital file, uploading or downloading a work between a user's computer and a website or other server, and transmitting a work from one computer to another may be infringements (in those cases, of the reproduction right).[3]

Copyright infringement is determined without regard to the intent or the state of mind of the infringer; "innocent" infringement is infringement nonetheless.[4]

Moreover, although the exclusive rights refer to such rights with respect to "copies" (plural) of the work,[5] there is no question that under the Act the making of even a single unauthorized copy may constitute an infringement.[6] Courts generally use the term "copying" as shorthand for a violation of any of the exclusive rights of the copyright owner (not just the reproduction right). Courts usually require a copyright owner to prove ownership of the copyrighted work and "copying" by the defendant to prevail in an infringement action.

Direct evidence of copying is best, but circumstantial evidence may suffice. The circumstantial test is whether (1) the defendant had access to the copyrighted work and (2) that defendant's work is "substantially" or "probatively" similar to the copyrighted material.[7] Other indications of copying, such as the existence of common errors, have also been accepted as evidence of infringement.[8]

The copying of the copyrighted work must be copying of protected expression and not just ideas;[9] likewise, the similarity between the two works must be similarity of protected elements (the expression), not unprotected elements (the facts, ideas, etc.). The portion taken must also be more than de minimis.

The similarity between the two works need not be literal (i.e., phrases, sentences or paragraphs need not be copied verbatim); substantial similarity may be found even if none of the words or brush strokes or musical notes are identical.[10] Various tests have been developed to determine whether there has been sufficient non-literal copying to constitute substantial similarity between a copyrighted work and an allegedly infringing work.[11]

Abstractions test Edit

Judge Learned Hand articulated the well-known "abstractions test," where the expression and the idea are, in essence, treated as ends of a continuum, with infringement found if the allegedly infringing work crosses the line delineating the two.[12] Such a line, as Judge Hand recognized, is not fixed in stone; indeed, as he put it, its location must "inevitably be ad hoc . . . ."[13]

Pattern test Edit

The "pattern test” has also been suggested, where infringement is found if the "pattern" of the work is taken (in a play, for instance, the "sequence of events, and the development of the interplay of characters").[14]

Subtractive test Edit

The "subtractive test” — which dissects the copyrighted work, disregards the noncopyrightable elements, and compares only the copyrightable elements of the copyrighted work to the allegedly infringing work — has been the traditional method for determining substantial similarity.[15]

Totality test Edit

Following the 1970 Ninth Circuit decision in Roth Greeting Cards v. United Card Co.,[16] the "totality test” became popular for determining substantial similarity. The totality test compares works using a "total concept and feel" standard to determine whether they are substantially similar. Although chiefly used by the Ninth Circuit in the 1970s and 1980s,[17] the test was used by other circuits as well.[18]

Extrinsic/intrinsic test Edit

The Ninth Circuit further defined an "extrinsic/intrinsic test” in proof of substantial similarity in Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.[19] The intrinsic portion of the test measures whether an observer "would find the total concept and feel of the works" to be substantially similar.[20] The extrinsic portion of the test, meanwhile, is an objective analysis of similarity based on "specific criteria that can be listed and analyzed."[21] Thus, this test requires substantial similarity "not only of the general ideas but of the expressions of those ideas as well."[22]

More recently, however, both the Ninth and Second Circuits have moved away from the totality test, particularly with respect to computer applications. In Data East USA, Inc. v. Epyx, Inc.,[23] the Ninth Circuit rediscovered "analytic dissection of similarities" in the substantial similarity determination of video games.[24]

Abstraction-filtration-comparison test Edit

Similarly, the Second Circuit, in Computer Associates International, Inc. v. Altai, Inc.,[25] fashioned an "abstraction-filtration-comparison test" for a computer program that combined Judge Learned Hand's "abstraction test” (to separate ideas from expression) and "filtration" reminiscent of traditional "subtraction" analysis in distinguishing protectible from non-protectible material.[26]

Ordinary observer test Edit

In addition to the evolution of substantial similarity tests, there is disagreement as to the appropriate "audience" for determining substantial similarity. The "ordinary observer test" — alluded to in Arnstein v. Porter[27] and followed in a number of Second Circuit decisions[28] — considers the question of substantial similarity from the viewpoint of the "average lay observer." The Fourth Circuit, however, set forth a modified test in Dawson v. Hinshaw Music Inc.,[29] requiring the ordinary observer to be the "intended" audience for the particular work. Relying on decisions by both the Ninth and Seventh Circuits,[30] the court in Dawson stated:

[i]f the lay public fairly represents the intended audience, the court should apply the lay observer formulation of the ordinary observer test. However, if the intended audience is more narrow in that it possesses specialized expertise, . . . the court's inquiry should focus on whether a member of the intended audience would find the two works to be substantially similar.[31]

The challenge of this test, especially in more advanced technologies, is determining when, if ever, a work is not directed to an audience possessing specialized expertise, and at what point a work once intended for a specialized audience becomes accepted by the general public. The ability to manipulate works in digital form raises an issue with respect to infringement of the reproduction and derivative works rights. A copyrighted photograph, for instance, can be manipulated in the user's computer in such a way that the resulting work is not substantially similar to the copyrighted work (in fact, it may bear little or no resemblance to the copyrighted work upon which it was based). The initial input of the copyrighted work into the user's computer may be an infringement of the copyright owner's reproduction right, but the infringing (or noninfringing) nature of the resulting work is less clear.

Although courts traditionally rely on a "substantial similarity" test to determine infringement liability — including with regard to the derivative works right — neither the meaning of "derivative work" nor the statutory standard for infringement appears to require an infringing derivative work to be substantially similar.[32]

Civil remedies Edit

Various remedies are available to copyright owners in infringement actions.

Injunctive relief Edit

A copyright owner may seek a preliminary or permanent injunction to prevent or restrain infringement.[33] Courts generally grant permanent injunctions where liability is established and there is a threat of continuing infringement.[34] Courts may also order the impounding of all copies or phonorecords at any time an action is pending.[35] As part of a final judgment, the court may order the destruction (or any other "reasonable disposition") of the infringing copies or phonorecords.[36]

Actual and statutory damages Edit

At any time before final judgment is rendered, a copyright owner may elect to recover actual damages and profits of the infringer or be awarded statutory damages.[37] Actual damages may be awarded in the amount of the copyright owner's losses plus any profits of the infringer attributable to the infringement (that are not taken into account in the calculation of the losses).[38] Statutory damages may be awarded in an amount between $750 to $30,000 per work infringed.[39]

The express language of 17 U.S.C. §412 prohibits the award of statutory damages if the initial act of infringement occurred before the effective copyright registration date. The purpose of Section 412 is twofold: first, it provides an incentive for copyright owners to register their copyrights promptly, and second, it encourages potential infringers to check the Copyright Office's database.[40]

Innocent infringement Edit

If an infringer can show that he or she was not aware and had no reason to believe that the activity constituted an infringement, the court may find there was an innocent infringement.[41] Such a finding is a factual determination, and does not absolve the defendant of liability for the infringement.[42] It does, however, give the court discretion to reduce the amount of damages awarded to the copyright owner.[43]

Willful infringement Edit

If a copyright owner can show that the infringement was willful, the court may increase statutory damages up to a maximum of $150,000.[44] An infringement may be found to be willful if the infringer had knowledge that the activity constituted infringement or recklessly disregarded the possibility of infringement.[45]

Costs and attorney's fees Edit

Whether a prevailing party is entitled to attorneys' fees under the Copyright Act "is reposed in the sound discretion of the district courts."[46]

Courts may also award reasonable attorney's fees to the prevailing party under certain circumstances.[47] No attorney's fees may be awarded for an infringement of copyright before its registration unless, in the case of published works, the infringement occurred after first publication and registration was made within three months of first publication.[48] The purpose of this limitation is twofold: first, it provides an incentive for copyright owners to register their copyrights promptly, and second, it encourages potential infringers to check the Copyright Office's database.[49]

The fee-shifting provisions of the Copyright Act allow an award of attorney's fees to the prevailing defendant on equal footing with the prevailing plaintiff, but requires the weighing of the Fogerty non-exclusive factors, which include frivolousness, motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.[50] A voluntary dismissal with prejudice generally will not establish prevailing-defendant status for the purpose of seeking attorney's fees.[51]

Criminal liability Edit

Not every infringement is a criminal offense. Criminal copyright penalties have always been the exception rather than the rule. Although criminal copyright law has greatly expanded the scope of the conduct it penalizes over the past century, criminal sanctions continue to apply only to certain types of infringement — generally when the infringement is particularly serious, the infringer knows the infringement is wrong, or the type of case renders civil enforcement by individual copyright owners especially difficult.

Copyright infringement is a crime if the defendant acted willfully and either (1) for commercial advantage or private financial gain, (2) by reproducing or distributing infringing copies of works with a total retail value of over $1,000 over a 180-day period, or (3) by distributing a "work being prepared for commercial distribution" by making it available on a publicly-accessible computer network.[52] Copyright infringement is a felony only if the infringement involved reproduction or distribution of at least 10 copies of copyrighted works worth more than $2,500 in a 180-day period, or involved distribution of a "work being prepared for commercial distribution" over a publicly-accessible computer network.[53]

There are three essential copyright crimes:[54]

  1. Willful infringement "for purposes of commercial advantage or private financial gain";[55]
  2. Willful infringement not for profit, but with "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";[56] and
  3. Pre-release piracy, i.e., willful infringement "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."[57]

The common factors are that (1) there must be a copyright, (2) there must be an infringement, and (3) the infringement must be willful. Some courts also require that the government prove an extra element, that the infringing items at issue were not permissible "first sales," but other courts hold first sale to be an affirmative defense.

Determining the elements to prove a felony (versus a misdemeanor) is slightly more involved.

For-profit infringement,[58] is a five-year felony if:

Non-profit infringement,[61] is a three-year felony if:

Pre-release infringement over a publicly-accessible computer network,[64] is always a felony, but the penalties increase if it is done for commercial advantage or private financial gain.[65]

In other words, there are four essential elements to a charge of felony copyright infringement:

  1. A copyright exists.
  2. The defendant acted willfully.
  3. It was infringed by the defendant by reproduction or distribution of the copyrighted work, or (for violations of 17 U.S.C. §506(a)(1)(C)), by distribution.
  4. The infringement consisted of either of the following:
(a) the defendant infringed at least 10 copies of one or more copyrighted works with a total retail value of more than $2,500 within a 180-day period; OR
(b) the defendant infringed by
(i) the distribution
(ii) by making available on a computer network accessible to members of the public
(iii) of a "work being prepared for commercial distribution"
(iv) the defendant knew or should have known the work was being prepared for commercial distribution.

Repeat felonies garner increased penalties.[66]

Amendments to the criminal copyright statutes in 1997 and 2005 significantly changed the elements of felony copyright infringement.[67]

Criminal penalties Edit

Whereas the substantive crime of copyright infringement is set forth at 17 U.S.C. §506(a), the penalties for that conduct are set forth at 18 U.S.C. §2319.[68]

A misdemeanor carries a sentence of up to one year of imprisonment and a $100,000 fine or twice the monetary gain or loss.[69]

A first-time felony conviction under 17 U.S.C. §506(a)(1)(A) carries a five-year maximum sentence of imprisonment and a fine up to $250,000 or twice the monetary gain or loss; repeat offenders face the same fine and ten years of imprisonment.[70] A first-time felony conviction under 17 U.S.C.§ 506(a)(1)(B) carries a three-year maximum sentence of imprisonment and a fine up to $250,000 or twice the monetary gain or loss; repeat offenders face the same fine and six years' imprisonment.[71] A first-time felony conviction under 17 U.S.C. §506(a)(1)(C) carries a three-year maximum sentence — five years if the offense was committed for purposes of commercial advantage or private financial gain — and a fine of $250,000 or twice the monetary gain or loss; repeat offenders face the same fine and twice the jail time (six or ten years, depending on whether the offense was committed for purposes of profit.[72]

Defenses Edit

Compulsory licenses Edit

See compulsory license.

Consent Edit

Explicit permission voluntarily granted by the copyright holder to use protected material in a particular manner is one of the most effective ways for a user to avoid infringement liability. Such permission may be expressed through a private licensing agreement whereby the copyright holder agrees to the particular use, often in exchange for a negotiated fee.

Fair use Edit

See fair use.

Statutes of limitations Edit

The statute of limitations for civil copyright infringement is three years from when the infringement is discovered, or should have been discovered with reasonable diligence.[73] In continuing infringement case, “[e]ach act of infringement is a distinct harm giving rise to an independent claim for relief.”[74]

The question of whether the "discovery rule" or the "injury rule" applies to determine when a civil cause of action accrues under the Copyright Act is a legal one. Under the discovery rule, a “cause of action accrues ‘when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.’”[75] Under the injury rule, a cause of action accrues at the time of the injury.[76]

Nine federal courts of appeals have applied the discovery rule to civil actions under the Copyright Act.[77]

The criminal copyright statute has a five-year statute of limitations.[78]

ReferencesEdit

  1. See 17 U.S.C. §501(a). Anyone who "trespasses into [the copyright owner's] exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute" is an infringer of the copyright. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984)(full-text).
  2. See 17 U.S.C. §106.
  3. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993)(full-text) (the turning on of the computer, thereby causing the operating system to be copied into random access memory RAM, constituted an infringing reproduction of the copyrighted software); Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356 (E.D. Va. 1994)(full-text) (loading software into computer's RAM constituted infringing reproduction); see also 2 Melville Nimmer & David Nimmer, Nimmer on Copyright §8.08 at 8-103 ("input of a work into a computer results in the making of a copy, and hence . . . such unauthorized input infringes the copyright owner's reproduction right").
  4. The innocence or willfulness of the infringing activity may be relevant with regard to the award of statutory damages. See 17 U.S.C. §504(c).
  5. See id. §106.
  6. See H.R. Rep. 94-1476,, at 61, reprinted in 1976 U.S.C.C.A.N. 5674 ("references to 'copies or phonorecords' are intended [in Section 106(1)-(3)] and throughout the bill to include the singular"; "the right 'to reproduce the copyright work in copies or phonorecords' means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated . . . "). Further evidence of the intent of Congress to make even a single act of unauthorized reproduction an infringement is found in specific exemptions created for certain single copy uses. See, e.g., 17 U.S.C. §§108(a), 108(f)(2), 112(a).
  7. See Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958 (8th Cir. 2005)(full-text); Dam Things from Denmark v. Russ Berrie & Co., 290 F.3d 548, 562 (3d Cir. 2002)(full-text); Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 532 (5th Cir. 1994)(full-text).
  8. See, e.g., Rockford Map Publishers, Inc. v. Directory Serv. Co., 224 U.S.P.Q. (BNA) 851 (C.D. Ill. 1984), aff'd, 768 F.2d 145 (7th Cir. 1985)(full-text), cert. denied, 474 U.S. 1061 (1986); Sub-Contractors Register, Inc. v. McGovern's Contractors & Builders Manual, Inc., 69 F. Supp. 507, 509 (S.D.N.Y. 1946)(full-text). It is common for publishers of directories and other compilations to deliberately insert mistakes into the work (such as periodically adding a fictitious name, address and phone number in a telephone directory) to detect and help establish copying. See 2 H. Abrams, The Law of Copyright §14.02[B][3][c], at 14-19 to 14-20 (1993).
  9. This should be implied in the requirement that there be copying of the copyrighted work. ideas and facts, of course, are not copyrightable. In the case of compilations, such as databases, if enough fact]s are copied, the copyrighted expression (the selection, arrangement or coordination of the facts) may be copied and infringement may be found. See CONTU Final Report, at 42 ("The use of one item retrieved from such a work — be it an address, a chemical formula, or a citation to an article — would not . . . conceivably constitute infringement of copyright. The retrieval and reduplication of any substantial portion of a data base, whether or not the individual data are in the public domain, would likely constitute a duplication of the copyrighted element of a data base and would be an infringement.").
  10. See Donald v. Zack Meyer's T.V. Sales & Serv., 426 F.2d 1027, 1030 (5th Cir. 1970) (full-text) ("paraphrasing is equivalent to outright copying"), cert. denied, 400 U.S. 992 (1971); Davis v. E.I. DuPont de Nemours & Co., 240 F. Supp. 612, 621 (S.D.N.Y. 1965) (full-text) ("paraphrasing is tantamount to copying in copyright law"); see generally 3 Melville Nimmer & David Nimmer, Nimmer on Copyright §13.03[A] at 13-28 to 13-58. Nimmer identifies two bases upon which courts impose liability for less than 100 percent verbatim copying: (1) "fragmented literal similarity" (where words, lines or paragraphs are copied virtually word-for-word, although not necessarily verbatim) and (2) "comprehensive nonliteral similarity" (where the "fundamental essence or structure" of a work is copied); see also P. Goldstein, Copyright §7.2.1 at 13-17. Goldstein identifies three types of similarity: (1) where the infringing work "tracks" the original work "in every detail," (2) "striking similarity" (where a brief portion of both works is "so idiosyncratic in its treatment as to preclude coincidence") and (3) similarities that "lie beneath the surface" of the works ("[i]ncident and characterization in literature, composition and form in art, and rhythm, harmony and musical phrases in musical composition"). Id. at 13 (citations omitted).
  11. For analyses of the various tests that have been used, see 3 Melville Nimmer & David Nimmer, Nimmer on Copyright §13.03[A] at 13-28 to 13-58; M. Leaffer, Understanding Copyright Law §§9.5-9.7 at 268-76.
  12. See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
  13. See Peter Pan Fabrics Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960).
  14. See Z. Chaffee, Reflections on the Law of Copyright: I, 45 Columbia L. Rev. 503, 513 (1945).
  15. See Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908-09 (3d Cir.), cert. denied, 423 U.S. 863 (1975) (subtracting all but the "stick figures" from chart as non-protectible subject matter); Alexander v. Haley, 460 F. Supp 40, 46 (S.D.N.Y. 1978) (finding "alleged infringements display no similarity at all in terms of expression or language, but show at most some similarity of theme or setting. These items, the skeleton of creative work rather than the flesh, are not protected by the copyright laws.").
  16. 429 F.2d 1106 (9th Cir. 1970).
  17. See, e.g., Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977); McCulloch v. Albert E. Price, Inc., 823 F.2d 316 (9th Cir. 1987).
  18. See, e.g., Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir. 1976); Atari, Inc. v. North American Philips Consumer Elects Corp., 672 F.2d 607 (7th Cir.), cert. denied, 459 U.S. 880 (1982); Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 877 (1987).
  19. 562 F.2d 1157 (9th Cir. 1977).
  20. See Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir. 1991).
  21. See Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1475 (9th Cir. 1992).
  22. Sid & Marty Krofft, at 1164.
  23. 862 F.2d 204 (9th Cir. 1988).
  24. See also Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1445 (9th Cir. 1994) (approving of district court's use of analytical dissection and agreeing with other courts' use of the "same analysis although articulated differently").
  25. 982 F.2d 693 (2d Cir. 1992). See Autoskill Inc. v. National Educational Support Sys., Inc., 994 F.2d 1476, 1490-91 (10th Cir. 1993).
  26. Other circuits have applied this test. See Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1343 (5th Cir. 1994); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 834 (10th Cir. 1993).
  27. 154 F.2d 464 (2d Cir. 1946).
  28. See, e.g., Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960); Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966); Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498 (2d Cir. 1982).
  29. 905 F.2d 731 (4th Cir. 1990).
  30. See Aliotti v. R. Dakin & Co., 831 F.2d 898, 902 (9th Cir. 1987) (holding that perceptions of children must be considered in substantial similarity analysis because they are intended market for product); Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 619 (7th Cir.), cert. denied, 459 U.S. 880 (1982) (holding that "[v]ideo games, unlike an artist's painting, . . . appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression").
  31. Dawson, at 736.
  32. An infringer is anyone who violates "any of the exclusive rights" of the copyright owner. 17 U.S.C. §501(a). One of the exclusive rights is the right "to prepare derivative works based upon the copyrighted work." 17 U.S.C. §106(2). The Ninth Circuit has suggested that "a work is not derivative unless it has been substantially copied from the prior work." See Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984) (emphasis added). It is unclear, however, whether the court is suggesting that a derivative work must be substantially similar to the prior work or that it simply must incorporate in some form a portion of the prior work, as noted in the legislative history. See H.R. Rep. 94-1476,, at 62, reprinted in 1976 U.S.C.C.A.N. 5675. The court noted that there is "little available authority" on infringement of the derivative works right. See Litchfield, at 1357.
  33. See 17 U.S.C. §502.
  34. Superhype Publishing, Inc. v. Vasiliou, 838 F. Supp. 1220, 1226 (S.D. Ohio 1993).
  35. See 17 U.S.C. §503(a).
  36. Id. §503(b).
  37. Id. §504. Statutory damages generally are not available if the infringement occurred before the effective date of registration of the work, unless the infringement occurred after first publication and registration was made within three months of first publication. See id. §412.
  38. See id. §504(b).
  39. See id. §504(c)(1).
  40. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 695, 700 (9th Cir. 2008).
  41. Id. §504(c)(2).
  42. D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir. 1990); Innovative Networks, Inc. v. Satellite Airlines Ticketing, Inc., 871 F. Supp. 709, 721 (S.D.N.Y. 1995). However, the court must remit statutory damages if (1) the infringer "believed and had reasonable grounds for believing" that the use was a fair use, and (2) the infringer was a nonprofit educational institution, library or archives (or its employee or agent) and infringed the reproduction right or a public broadcasting entity (or a person who "as a regular part of the nonprofit activities" of a public broadcasting entity) that infringed by performing a published nondramatic literary work or reproducing a transmission program embodying a performance of such work. See 17 U.S.C. §504(c)(2).
  43. See id. §504(c)(2) ("where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court . . . may reduce the award of statutory damages to a sum of not less than $200"); D.C. Comics, at 35 (defendant's lack of business sophistication and absence of copyright notice on copies were basis for a finding of innocent infringement and statutory damages of only $200). A person who is misled and innocently infringes by relying on the lack of a copyright notice on a copy of a work that was lawfully publicly distributed before March 1, 1989, is not liable for any damages (actual or statutory) for infringements committed before actual notice of registration of the work is received. 17 U.S.C. §405(b). The court may allow, however, the recovery of any of the infringer's profits attributable to the infringement. Id.
  44. See id. §504(c)(2).
  45. Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1382 (2d Cir. 1993); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1020 (7th Cir.), cert. denied, 502 U.S. 861 (1991).
  46. Fantasy v. Fogerty, 94 F.3d 553, 555 (9th Cir. 1996) (full-text); 17 U.S.C. §505.
  47. Id.; see also Roth v. Pritikin, 787 F.2d 54, 57 (2d Cir. 1986) (attorney's fees generally awarded to prevailing plaintiffs because Copyright Act is intended to encourage suits to redress infringement); Chi-boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1230 (7th Cir. 1991) (attorney's fees and costs serve to deter infringement, dissuade defendant's disdain for copyright law, and encourage plaintiffs to bring colorable claims against infringers).
  48. 17 U.S.C. §412.
  49. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 695, 700 (9th Cir. 2008).
  50. See Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
  51. See Bridgeport Music, Inc. v. London Music, U.K., 345 F.Supp.2d 836 (M.D. Tenn. 2004), aff’d, 226 Fed.Appx. 491 (6th Cir. 2007) (affirming but expressly declining to decide whether voluntary dismissal with prejudice satisfied prevailing-party test).
  52. 17 U.S.C. §506(a)(1).
  53. See id.; 18 U.S.C. §2319.
  54. Other copyright-related criminal offenses include: for copyrighted works (id. §2318).
  55. 17 U.S.C. §506(a)(1)(A) (formerly §506(a)(1), before the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9 § 103, 119 Stat 218, 220-21 (Apr. 27, 2005) amendments).
  56. 17 U.S.C. §506(a)(1)(B) (formerly §506(a)(2) before the Apr. 27, 2005 amendments).
  57. Id. §506(a)(1)(C) (newly enacted with the Apr. 27, 2005 amendments).
  58. 17 U.S.C. §506(a)(1)(A).
  59. 18 U.S.C. § 2319(b)(1).
  60. Id. §2319(b)(3).
  61. 17 U.S.C. §506(a)(1)(B).
  62. 18 U.S.C. §2319(c)(1).
  63. Id. §2319(c)(3).
  64. 17 U.S.C. §506(a)(1)(C).
  65. 18 U.S.C. §2319(d)(1),(2).
  66. See 18 U.S.C. §2319(b)(2), (c)(2), (d)(3)-(4).
  67. See No Electronic Theft Act (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997); Family Entertainment and Copyright Act of 2005 (FECA), Pub. L. No. 109-9 § 103, 119 Stat. 218, 220-21 (2005). Cases predating these statutes should not necessarily be relied upon for delineating the elements of current copyright offenses, but they remain useful in interpreting the current law's elements.
  68. See 17 U.S.C. § 506(a) ("Any person who infringes a copyright willfully . . . shall be punished as provided under section 2319 of title 18, United States Code.").
  69. See 18 U.S.C. §§2319(b)(3),(c)(3), 3571(b)(5).
  70. 18 U.S.C. §§2319(b)(1),(2), 3571(b)(3),(d) (specifying fines for Title 18 offenses where the fine is otherwise unspecified).
  71. 18 U.S.C. §§2319(c)(1),(2), 3571(b)(3),(d).
  72. 18 U.S.C. §§2319(d), 3571(b)(3), (d).
  73. 17 U.S.C. §507(b).
  74. Stone v. Williams, 970 F.2d 1043, 1049 (2d Cir. 1992).
  75. Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth., 539 F.3d 199, 209 (3d Cir. 2008) (quoting Romero v. Allstate Corp., 404 F.3d 212, 222 (3d Cir. 2005)).
  76. See Auscape Int’l v. Nat’l Geographic Soc’y, 409 F.Supp.2d 235, 247 (S.D.N.Y. 2004).
  77. See William A. Graham Co. v. Haughey, 568 F.3d 425, 90 U.S.P.Q.2d (BNA) 1810 (3d Cir. 2009); Warren Freedenfeld Assocs., Inc. v. McTigue, 531 F.3d 38, 44-46 (1st Cir. 2008); Comcast v. Multi-Vision Elecs., Inc., 491 F.3d 938, 944 (8th Cir. 2007); Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 390 (6th Cir. 2007); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 705-07 (9th Cir. 2004); Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004); Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796 (4th Cir. 2001); Daboub v. Gibbons, 42 F.3d 285, 291 (5th Cir. 1995); Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992).
  78. Id. §507(a). The five-year limitations period was first established by the NET Act, Pub. L. No. 105-147 §2(c), 111 Stat. 2678 (1997).

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