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With the advent of digital communication technology, the Internet and social media as means to distribute information, digital copying and distribution of copyrighted material is now cheaper and easier than ever before and it is now easy to traffic copyrighted materials around the world.
The Digital Millennium Copyright Act was enacted by Congress and added to 17 U.S.C. §§ 1201-1205 in order to protect copyrighted works from piracy and promoting electronic commerce by criminalizing the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition to this, the DMCA heightens the penalties for copyright infringement on the Internet.
If a defendant is convicted of circumventing 17 U.S. Code § 1204, he/she can be fined up to $500,000, imprisoned for up to five years, or both. However, there are often multiple charges for such offenses and for any subsequent offense a defendant may be fined up to $1,000,000, imprisoned for up to 10 years, or both.
The United States No Electronic Theft Act (NET Act), which was passed in 1997, provides for criminal prosecution of individuals who engage in copyright infringement under certain circumstances, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines.
As with trade secrets, the digital piracy statute contains three reverse engineering or “interoperability” defenses for individuals using circumvention technology “‘for the sole purpose’ of trying to achieve ‘interoperability’ of computer programs through reverse engineering. This point requires further elaboration and, if it is relevant to your case, our firm invites you to contact us and speak to one of our attorneys.
If a defendant were simply testing a piece of software to see if there was any weakness or flaw in its encryption technology, he or she is also exempt from being prosecuted for digital piracy. This is referred to as “encryption research” and if it is done to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products it does not constitute digital piracy.
Digital privacy laws are not violated by virtue of avoiding access control to disable the collection of personally identifiable files known as “cookies”. The cookies are automatically deposited on hard drives during a visit on a word wide web site.
If a copyright owner discloses that its access control also contains personal data gathering functions and the consumer is given the option to stop the gathering and/or dissemination of personal information, digital privacy laws are not violated.
