71 Denv. U. L. Rev. 671 (1993-1994)
Criminal Copyright Infringement and the Copyright Felony Act

handle is hein.journals/denlr71 and id is 685 raw text is: CRIMINAL COPYRIGHT INFRINGEMENT AND THE
COPYRIGHT FELONY ACT
MARY JANE SAUNDERS*
INTRODUCTION
Title 17 of the United States Code defines criminal copyright in-
fringement as willful infringement for the purpose of commercial advan-
tage or private financial gain.' Prosecution of criminal copyright
infringement, meaning the piracy2 and counterfeiting5 of all forms of
copyrighted works, is governed by Tide 18 of the United States Code, cov-
ering crimes and criminal procedure.4
On October 8, 1992, Congress approved the Copyright Felony Act,5
which harmonizes the sanctions imposed for criminal copyright infringe-
ment. This Article examines the nature of copyright protection, the evolu-
tion of sanctions for criminal infringement, and the elements of the
offense of criminal copyright infringement as defined by the Copyright
Felony Act.
A. Copyright Protection
Copyright, as a form of intellectual property protection, is rooted in
the United States Constitution.6 Copyright subsists in original works of
authorship7 including the following broad categories: (1) literary works,8
(2) musical works, (3) dramatic works, (4) choreographic works, (5) picto-
* Partner, Arter and Hadden, Washington, D.C.
1. See 17 U.S.C. § 506(a) (1988 & Supp. IV 1992).
2. Piracy or bootlegging are words popularly used to describe the unauthorized
duplication of sound recordings, films, tape cartridges, cassettes, software programs on
floppy diskettes, video cassettes, and video games. A pirated copy or bootleg is an accurate
copy of all or part of the original commercial version, but the package and graphics are
usually unrelated in appearance to the original.
3. Counterfeiting is one step beyond piracy. A counterfeit reproduces both the un-
derlying work and the packaging, including color art, company labels, corporate logos and
trademarks. A counterfeit is often difficult to distinguish from the original. Indeed, identifi-
cation of counterfeits is often so difficult that unscrupulous retailers and distributors are able
to meld the counterfeits into their stock of legitimate products. See United States v. Shultz,
482 F.2d 1179 (6th Cir. 1973).
4. 18 U.S.C. §§ 1-6005 (1988 & Supp. IV 1992).
5. Pub. L No. 102-561, 106 Stat. 4233 (1992).
6. U.S. CONST. art. II, § 8, cl. 8.
7. 17 U.S.C. § 102 (1988 & Supp. IV 1992).
8. Id. § 101. 'Literary works' are works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of
the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes,
disks, or cards, in which they are embodied. Id. Thus, computer software programs are pro-
tected as literary works.

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