DMCA and criminal penalties

I've been looking into the criminal penalties section of the DMCA. This is scary stuff. You do NOT have to be a big-time infringement business to trigger criminal liability in modern copyright law (as most famously demonstrated by Dmitry Sklyarov) . In fact, it's surprisingly easy.

From the Department of Justice Criminal Resource Manual:

Copyright Infringement -- Fourth Element -- Commercial Advantage or Private Financial Gain (emphasis added)

It is a common misconception that if infringers fail to charge subscribers a monetary fee for infringing copies, they cannot be held to have engaged in criminal copyright infringement. It is the position of the Department that the term "for purposes of commercial advantage or private financial gain" does not require the payment in money for the infringing works, but includes payment by trading anything of value for them. Thus, when "bartering" (i.e., the practice of exchanging infringing works for other infringing works) results in the unauthorized dissemination of substantial amounts of infringing product without recompense to the copyright holders, prosecution appears to be fully consistent with the purposes of the criminal copyright statute.

By Seth Finkelstein | posted in dmca , legal | on November 24, 2002 11:51 PM (Infothought permalink) | Followups

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