The copyright industries’ mantra that “digital is different” has driven an aggressive, global expansion in criminal sanctions for copyright infringement over the last two decades. Historically speaking, criminal penalties for copyright infringement under U.S. law date from the turn of the 20th century, which means that for over a hundred years (from 1790 to 1897), copyright infringement was exclusively a civil cause of action. From 1897 to 1976, there were criminal penalties, but only misdemeanor ones. In 1976, felony penalties were introduced, but only for repeat offenders. Following enactment of the 1976 Copyright Act, the pace of amendments expanding criminal liability greatly accelerated—a trend that more or less coincided with the PC revolution. In 1982, felony penalties were extended to some first-time offenses, but not for all types of copyrighted works. In 1992, felony penalties were extended to all types of works. In 1997, as the commercial Internet was beginning its exponential growth, the No Electronic Theft (NET) Act eliminated a longstanding requirement of commercial motive for criminal liability, making some infringements criminally actionable even if they are undertaken without any expectation of financial gain. Under the NET Act, a willful infringer acting without any commercial motive faces up to three years in prison for reproducing or distributing as few as 10 unauthorized copies of a copyrighted work.
As criminal penalties have ballooned domestically, they have also been expanding internationally. The international expansion in criminal copyright liability has occurred in part (and increasingly) through the vehicle of plurilateral and bilateral trade agreements. The United States uses its negotiating leverage in the trade policy arena to pressure trading partners, particularly less powerful ones, to incorporate strict IP norms into their domestic law. [Read more…]