How Are Anti-Piracy Laws Enforced? Takedowns, Lawsuits, and Blocking

Online piracy can be enforced through takedown notices, civil lawsuits, court orders, and, in some cases, criminal prosecution. A copyright owner may ask an online service provider to remove infringing material, sue the responsible party for damages, or seek an injunction to stop the infringement. When the conduct meets the requirements for a federal crime, the government can also pursue criminal charges.

If you believe someone is pirating your work, use the Super Lawyers directory to find an intellectual property litigation lawyer.

What Laws Prohibit Online Piracy?

In the United States, the Copyright Act gives copyright owners intellectual property rights, including exclusive rights to reproduce, distribute, perform, and display their works. These rights provide the foundation for federal copyright protection.

The Digital Millennium Copyright Act (DMCA) specifically addresses copyright infringement online. The DMCA created the notice-and-takedown process. It gives copyright owners a way to ask online service providers to remove or disable access to allegedly infringing material. The U.S. Copyright Office maintains resources explaining copyright law, the DMCA, and related protections.

Congress has considered even broader enforcement measures. The Stop Online Piracy Act (SOPA) and Foreign Anti-Digital Piracy Act (FADPA) were proposed bills that addressed online piracy and foreign websites accused of facilitating infringement. Neither was enacted, so neither provides a current source of federal authority to block or take down piracy websites.

Copyright enforcement can also involve infringement outside the United States. The World Trade Organization (WTO) administers the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. It establishes minimum standards for protecting and enforcing intellectual property rights internationally.

Copyright Takedown Notices Can Be the First Step

When copyright holders find online copyright infringement, they may not need to file a lawsuit immediately. The DMCA provides a notice-and-takedown system under 17 U.S.C. § 512 that allows copyright owners to ask online service providers to remove or disable access to allegedly infringing material.

A copyright holder can send a notice to the service provider’s designated agent. The notice generally must include:

• The copyrighted work
• Location of the allegedly infringing material
• The copyright owner’s contact information
• A good-faith statement that the use is unauthorized
• Physical or electronic signature.

Once a service provider receives a compliant notice, it generally must act quickly to remove the material or disable access to it. Otherwise, it risks losing protection under DMCA safe harbor. The notice-and-takedown system therefore gives copyright holders a way to address infringement without immediately turning to litigation.

Copyright enforcement can happen on a much larger scale than one copyright owner searching the internet for unauthorized copies. The Motion Picture Association (MPA), formerly known as the MPAA, has been involved in copyright enforcement efforts on behalf of the film and television industry. Copyright owners and industry organizations can use monitoring and enforcement programs to identify infringement and seek takedowns or other remedies.

Another tool is digital rights management (DRM), which uses technological measures to control access to or use of digital content. DRM can help prevent unauthorized copying or access, while a DMCA takedown is a legal mechanism for responding after allegedly infringing material appears online.

What Happens After a Takedown Notice?

Once a service provider removes or disables access to allegedly infringing material, the person who posted it generally receives notice of the removal. That person may be able to challenge the takedown by submitting a DMCA counter-notice.

A user can submit their own counter-notice when they believe a mistake or misidentification led to the removal. The counter-notice must meet DMCA requirements. It must identify the removed material and include the user’s required statements and contact information.

If the service provider receives a valid counter-notice, it generally must wait 10 to 14 business days before restoring the material. The provider may restore access during that period unless the copyright owner notifies it that a court action has been filed to prevent restoration.

A takedown notice does not mean that a copyright lawsuit has been filed. It is part of the DMCA’s notice-and-takedown process. A copyright owner who wants to pursue damages or other court-ordered relief must generally take the separate step of filing a civil action.

When Copyright Owners File a Civil Lawsuit

A copyright owner can file a federal civil lawsuit when online infringement is serious enough to warrant court intervention. Before filing an infringement action, the copyright owner generally must have registered the work with the U.S. Copyright Office or obtained a refusal of registration, subject to statutory exceptions.

A lawsuit can target the person directly committing the infringement. Depending on the circumstances, it can also name a business operating a piracy website. The lawsuit may also name another party accused of helping facilitate or profiting from the infringement.

The legal theory behind the lawsuit matters because the person who owns or operates the piracy service is not always the person who personally uploaded every infringing file. Common theories include direct infringement, contributory infringement, vicarious infringement, and inducement of infringement.

The Recording Industry Association of America (RIAA) is an example of civil copyright enforcement. In the early days of widespread online file sharing, the RIAA sued individuals accused of illegally sharing copyrighted music online. The litigation extended beyond operators of large piracy services. It also included individual users who directly infringed copyrighted works.

What Can a Copyright Owner Recover in a Piracy Lawsuit?

If a copyright owner discovers someone infringing on their intellectual property, they can pursue damages through a civil lawsuit. Available damages can vary based on the specific circumstances of the infringement.

One option is actual damages. This includes lost profits attributable to the infringement. Making this type of claim may require the plaintiff to provide evidence that shows their losses and the infringer’s profits.

Another option is to seek injunctive relief. This is when the court orders the defendant to perform a specific action. Typically, the injunctive court order is to stop the infringing activity.

Some copyright owners may opt to seek statutory damages instead of actual damages. The basic range of statutory damages is between $750 and $30,000 per infringed work. However, willful infringement can significantly increase the damages above this range. Not every claim will result in the same damages amount. A statutory calculation will determine what a plaintiff receives.

When appropriate, the court may award attorneys’ fees and court costs. However, these damages are discretionary and not automatic.

Courts Can Order Pirated Material Removed or Block Access

Courts can issue temporary or permanent injunctions to prevent or restrain copyright infringement. It could order a party to stop distributing copyrighted works. It could require a party to remove or disable infringing material. The order could prevent continued operation of an infringing service.

Can a Court Block an Entire Website?

Sometimes removing individual files is not enough. A piracy website may replace a removed file, move the same material to another page, or continue offering thousands of other infringing works. In those situations, a copyright owner may ask a court for broader relief that limits access to the website itself.

Under 17 U.S.C. § 512(j), courts may impose certain forms of injunctive relief against qualifying service providers, including Internet service providers (ISPs). In some circumstances, the court can order an ISP to take reasonable steps to block access to a specific, identified online location outside the United States.

Site-blocking orders can take different technical forms. Website blocking may prevent users from reaching a particular domain. DNS blocking can prevent a domain name system (DNS) lookup from directing a user to the blocked site. Depending on the order, DNS providers or other intermediaries may restrict access.

Courts don’t jump to blocking an entire website simply because a copyright owner wants that. Before issuing this type of order, the court must consider the burden it would place on the service provider, the harm to the copyright owner, and whether the blocking is effective and feasible.

In some situations, the court may need to take more aggressive steps to prevent infringing activity. A dynamic injunction is a flexible court order. It automatically applies to new mirror sites, redirects, and domain name changes. This removes the need for a new lawsuit every time the copyright owner finds a new version of infringement from the same defendant.

When Does Digital Piracy Become a Criminal Offense?

Generally, copyright infringement is a civil matter. However, it becomes criminal when the infringement is willful. Under 17 U.S.C. § 506(a), criminal copyright infringement is a federal crime that occurs when a person intentionally breaks copyright law for financial gain, engages in large-scale copying, or releases a work before it is officially finished.

Criminal enforcement is different from civil enforcement. In a civil lawsuit, a private citizen or entity sues another. In a criminal case, a government entity prosecutes a private citizen.

Who Investigates and Prosecutes Criminal Copyright Infringement?

Because copyright law is federal, the U.S. Department of Justice and federal prosecutors handle the investigation process. Criminal copyright offenses are prosecuted under 17 U.S.C. § 506 and 18 U.S.C. § 2319.

Depending on the circumstances, a first-time offense could carry a penalty of up to five years’ imprisonment. Penalties increase with subsequent offenses.

Are There State Anti-Piracy Laws?

Copyright law is addressed on a federal level. The Copyright Act is the central legal framework that governs intellectual property rights protection.

However, someone may have additional separate state-level claims. Associated behavior or actions may also violate state law. Depending on the circumstances, you may have a separate state civil or criminal claim.

Speak With a Copyright Lawyer

A copyright owner may have several options when copyrighted material is being pirated online. A copyright lawyer can help you determine what remedies may be available and take the necessary steps to enforce your rights.

If you need legal help with a copyright matter, use the Super Lawyers directory to find an intellectual property litigation lawyer.