Digitization, Commodification, Criminalization: the Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement

66 Pages Posted: 14 Dec 2010

Date Written: 1999

Abstract

This article explores criminal copyright infringement in light of the No Electronic Theft (NET) Act. The adoption of the NET Act in 1997 marked a significant turning point in the law of criminal copyright infringement by eliminating proof of a profit motive as a requirement for conviction. This article explores not only the history of criminal copyright infringement in this country but the reasons underlying this expansion of criminal liability for copyright infringement.

The only element of this new type of non-commercially motivated criminal infringement that stands between legitimate protection for copyright owners and illegitimate criminalization of widespread practices of individuals is the requirement that the infringement be willful. The willfulness requirement in criminal law is subject to varying interpretations depending on the context of its use. This article argues that proving willfulness in the context of criminal copyright infringement must require proof of a violation of a known legal duty. Additionally, credible claims of ignorance of the law or a good faith belief in the lawfulness of the activity should negate willfulness and thus prevent conviction for criminal infringement. Civil infringement liability, which requires no mental intent, would still apply to these infringers.

Keywords: Criminal Copyright Infringment

JEL Classification: K14, O34

Suggested Citation

Loren, Lydia Pallas, Digitization, Commodification, Criminalization: the Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement (1999). Washington University Law Quarterly, Vol. 77, No. 3, 1999, Available at SSRN: https://ssrn.com/abstract=980768

Lydia Pallas Loren (Contact Author)

Lewis & Clark Law School ( email )

10015 SW Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6755 (Phone)
503-768-6671 (Fax)

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