Federal Copyright Infringement Defense Lawyer Arizona

Federal Copyright Infringement Defense

Defense against criminal copyright infringement charges under 17 U.S.C.
§ 506 and 18 U.S.C. § 2319 in federal court.

Myles A. Schneider

30+ Years Federal Defense

Facing Federal Copyright Infringement Charges? We Can Help.

You’re facing federal criminal charges for copyright infringement and the potential penalties are far worse than a civil lawsuit. Most people think copyright disputes are civil matters. But when the government decides to prosecute criminally under 17 U.S.C. 506 you’re facing up to five years in federal prison for a first offense. If they claim the infringement was for commercial advantage or financial gain the stakes go even higher.

I defend criminal copyright cases by challenging the government’s evidence of willfulness and commercial motivation. These cases often involve complex questions about fair use, licensing and intent that create real opportunities for defense.

A Valid Copyright Exists: The government must prove that the work in question is protected by a valid copyright.

Infringement by the Defendant: The defendant must have infringed upon the copyright holder’s exclusive rights (typically the right of reproduction or distribution).

Willfulness: The infringement must have been committed willfully. This means the defendant acted with the specific intent to violate the law, not merely by accident or mistake.

Statutory Purpose or Threshold: The government must prove that the willful infringement was committed in one of three ways:

(A) For purposes of commercial advantage or private financial gain.**

(B) By the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.**

Base Offense Level: The base offense level for criminal infringement of copyright is **8**.

Infringement Amount (Loss Calculation): The most significant factor in sentencing is the “infringement amount.” Under § 2B5.3(b)(1), the offense level increases based on the retail value of the infringed items multiplied by the number of infringing items. If the infringement amount exceeds $2,500, the offense level is increased according to the theft/fraud table in § 2B1.1. For example, an infringement amount of $100,000 adds 8 levels, while an amount of $1,000,000 adds 14 levels.

Specific Offense Characteristics: Additional enhancements apply if the offense involved:

The manufacture, importation or uploading of infringing items (adds 2 levels).

The offensewas not committed for commercial advantage or private financial gain (base level remains 8, but no loss enhancement applies).

Risk of serious bodily injury (e.g., counterfeit software used in critical infrastructure) (adds 2 levels, minimum level 14).

Unlike some federal drug or firearms offenses, criminal copyright infringement under 18 U.S.C. § 2319 does not carry statutory mandatory minimum prison sentences. This gives federal judges discretion to sentence below the calculated guideline range, making effective defense advocacy at sentencing crucial.

Digital Piracy and Streaming: The DOJ has aggressively targeted large-scale illegal streaming services and peer-to-peer (P2P) networks. Operations like the takedown of “Jetflicks” demonstrate the DOJ’s willingness to pursue complex, multi-defendant digital piracy rings.

Counterfeit Software and Goods: The sale of counterfeit software (e.g., Adobe, Microsoft) on platforms like eBay or standalone websites remains a high priority, especially when the software is sold to unsuspecting consumers or businesses.

Pre-Release Piracy: The unauthorized distribution of movies, music or software before their official commercial release is heavily prosecuted under 17 U.S.C. § 506(a)(1)(C).

District of Arizona Specifics

The U.S. Attorney's Office for the District of Arizona, with divisions in Phoenix and Tucson, actively prosecutes intellectual property crimes.

Arizona's proximity to the border and its growing tech sector make it a focal point for federal IP investigations. The District of Arizona has seen notable prosecutions involving counterfeit software. For example, in a prominent Phoenix case, a defendant was sentenced to 27 months in federal prison for mass-producing counterfeit brand-name software (such as Adobe and Symantec) and selling it on eBay and commercial websites [4]. The FBI and the Software & Information Industry Association (SIIA) collaborated closely on this investigation.

The U.S. Attorney's Office in Arizona prioritizes cases that involve significant economic harm to legitimate businesses, large-scale conspiracies, and defendants who use sophisticated means (such as shell companies, aliases and offshore servers) to conceal their illicit activities.

Federal Bureau of Investigation (FBI): The FBI’s Cyber Division and local field offices (like the Phoenix Field Office) take the lead on major digital piracy and software counterfeiting cases.

Homeland Security Investigations (HSI): HSI often investigates cases involving the importation of counterfeit goods or physical media from overseas.

Postal Inspection Service (USPIS): Involved when counterfeit goods are shipped through the U.S. mail.

Investigations are frequently triggered by referrals from industry watchdogs (like the SIIA, the Motion Picture Association, or the Recording Industry Association of America) or copyright holders themselves.

During an investigation, federal agents will gather evidence through:

Subpoenas: To internet service providers (ISPs), web hosts, and financial institutions (PayPal, banks) to trace IP addresses and money trails.

Undercover Purchases: Agents may buy counterfeit software or subscribe to illegal streaming services to gather evidence.

The Software Reseller: An individual purchases cheap, unauthorized product keys or counterfeit discs from overseas suppliers and resells them on eBay, Amazon or a custom website at a markup, claiming they are legitimate.

The Streaming Site Operator: A tech-savvy individual sets up a subscription-based IPTV service that illegally captures and rebroadcasts copyrighted television channels, movies and live sports events.

The Torrent Tracker Admin: Operating a website that indexes and facilitates the peer-to-peer sharing of copyrighted movies, music and software, generating revenue through advertising or VIP memberships.

The Corporate Insider: An employee steals proprietary, copyrighted source code or training materials from their employer and attempts to sell it to a competitor or distribute it online.

Lack of Willfulness: The government must prove the defendant acted willfully. A strong defense may argue that the defendant genuinely believed they had a license, that the work was in the public domain, or that their actions constituted “fair use.”

Challenging the Loss Calculation: Because the sentence is heavily tied to the “infringement amount,” defense attorneys aggressively challenge the government’s valuation of the copyrighted works and the estimated number of infringing copies.

First Sale Doctrine: Under 17 U.S.C. § 109, the owner of a lawfully made copy of a work can sell or dispose of that specific copy. While the majority of courts view this as an affirmative defense, proving that the items were lawfully acquired can defeat the charges.

Invalid Copyright: Challenging the validity of the underlying copyright or proving that the copyright holder did not actually own the exclusive rights in question.

Suppression of Evidence: Filing motions to suppress evidence obtained through illegal search warrants or unconstitutional wiretaps.

Asset Forfeiture: The government will seize any assets (bank accounts, real estate, vehicles) derived from the proceeds of the crime, as well as any equipment (servers, computers) used to commit the offense.

Restitution: Courts routinely order defendants to pay massive restitution to the copyright holders for the financial losses they suffered. This debt cannot typically be discharged in bankruptcy.

Loss of Professional Licenses: A felony conviction involving fraud or deceit can result in the revocation of professional licenses (e.g., law, medicine, real estate, CPA).

Immigration Consequences: For non-citizens, a conviction for an aggravated felony or a crime involving moral turpitude can lead to deportation and a permanent bar from re-entering the United States.

Supervised Release: Upon release from prison, defendants face years of supervised release, which may include strict restrictions on internet access and computer use.

Is downloading a movie or song for personal use a federal crime?

A: Generally, no. While downloading copyrighted material for personal use is a civil copyright violation that can result in a lawsuit from the copyright holder, the DOJ typically reserves criminal prosecution for individuals who distribute or reproduce copyrighted works on a large scale, especially for financial gain.

What is the difference between civil and criminal copyright infringement?

A: Civil infringement involves a lawsuit filed by the copyright owner seeking financial damages or an injunction. Criminal infringement is prosecuted by the federal government (DOJ) and requires proof that the infringement was “willful” and met specific statutory thresholds (e.g., for commercial advantage or involving a certain retail value). Criminal cases carry the risk of federal prison time.

How does the government calculate the value of the infringed items?

A: The government typically uses the “retail value” of the infringed item (the legitimate, copyrighted work) multiplied by the number of infringing copies. Defense attorneys often contest this calculation, arguing that the infringing copies (e.g., a low-quality bootleg) should be valued lower, or that the government’s estimate of the number of copies is inflated.

Can I be charged if I didn't actually make any money from the infringement?

A: Yes. Under 17 U.S.C. § 506(a)(1)(B), you can be charged with a felony even if you did not act for commercial advantage or private financial gain, provided you reproduced or distributed 10 or more copies with a total retail value of more than $2,500 within a 180-day period.

What should I do if federal agents execute a search warrant at my home or business?

A: Do not answer any questions, do not consent to any further searches, and do not attempt to destroy evidence. Politely state that you wish to speak with an attorney and immediately contact an experienced federal criminal defense lawyer.

How long does a federal copyright investigation take?

A: These investigations are highly complex and can take anywhere from several months to several years. Federal agents must analyze massive amounts of digital evidence, trace financial transactions, and coordinate with copyright holders before seeking an indictment.

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Myles A. Schneider

30+ Years Federal Defense Experience

U.S. Army Veteran (82nd Airborne)

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