In determining whether to proceed with a criminal copyright prosecution, the United States Attorneys should evaluate several important considerations. First, federal law preempts much of the copyright field. See17 U.S.C. § 301. With federal preemption of copyright protection, prosecutors must now recognize that individuals harmed by copyright violations are unlikely to have recourse to state criminal laws. In most instances, criminal prosecution of copyright offenders is possible only within the federal system. United States Attorneys should keep this factor in mind when considering whether to decline prosecution in a copyright case. Thus, a decision by the United States Attorney to decline prosecution in a copyright matter may foreclose all avenues of criminal prosecution. This consideration suggests that all criminal copyright matters should receive careful attention.

Second, the criminal penalties of 17 U.S.C. § 506(a) for willful infringements undertaken for purposes of commercial advantage or private financial gain, form an important part of the copyright enforcement scheme. An increased need for deterrence in this area is reflected in the 1982 enactment of felony penalties for piracy and counterfeiting of sound recordings and audiovisual works. See 18 U.S.C. § 2319. Consequently all meritorious cases which fall within the parameters of these felony statutes should receive serious consideration.

Once the technical elements of the offense appear to be satisfied, the United States Attorney is, of course, free to consider additional equitable factors in determining whether to pursue a criminal copyright prosecution.

1. A. The seriousness of the offense: Felony penalties for first offenses begin at seven copies for audiovisual works, and one hundred copies for sound recordings. In this context, prosecution of felony offenses of comparatively moderate scale may have substantial deterrent impact. It should also be kept in mind that lesser volumes of counterfeiting or pirating activity may suitably lend themselves to the plea bargaining process in particular cases since 18 U.S.C. § 2319(b)(3) provides misdemeanor penalties upon conviction for the first offense. A misdemeanor plea also serves a deterrent function because of the prospect of felony charges for a future offense. Prosecutions focused on the most serious offenders should, of course, be given top priority. Thus, appropriate factors should include the nature and volume of the infringing activity or a prior history of similar conduct by the suspect. Individuals who have continued to infringe for financial gain after civil remedies have been successfully invoked should receive particular attention.
2. B. The likelihood of successful prosecution: An unsuccessful prosecution may be counterproductive not only in terms of allocation of resources, but also with respect to deterrence. The presence of legal or evidentiary problems should be carefully evaluated, particularly with regard to criminal intent. A suspect actually involved in the manufacture and distribution of infringing works would be a promising candidate for criminal prosecution, since the possession and use of elaborate duplicating equipment and accessories will normally supply effective evidence of criminal intent. As to others in the chain of distribution, different proof of criminal intent is usually required to preclude the successful assertion of defenses.

A number of special charging considerations may become pertinent to cases involving violations of intellectual property rights in electronic environments (such as computer networks), or cases arising in business environments that involve employer-employee relationships. Special considerations may also arise as the result of statutory changes of consequence that may occur with respect to underlying copyright laws. If assistance or legal advice is needed (or if resource limitations do not permit the handling of a particular case which otherwise merits prosecutive attention), prosecutors are encouraged to contact the Computer Crime and Intellectual Property Section.

[updated January 2020]