The Strange World of Criminal Copyright Enforcement

Two years after a court in Sweden affirmed his conviction for copyright law violations and sentenced him to eight months in prison, police arrested Peter Sunde, one of the founders of a popular website frequently accused of copyright infringement. Sunde and three others were convicted by a Swedish court in 2009 of assisting the distribution of illegal content online. Copyright infringement is generally treated as a civil claim, but the laws in the United States and other countries provide for criminal penalties in certain circumstances. Sunde’s case relates to the growing legal field of cybercrime because of the internet’s potential for wide distribution of infringing materials.

The Pirate Bay website allows users to download media, including movies, video games, and music, using BitTorrent, a peer-to-peer network protocol that allows people to distribute large amounts of data over the internet. Critics allege that this, much like other services that came before it, has led to massive amounts of copyright infringement. Other popular websites that allegedly serve similar functions have also been the subject of criminal investigations and prosecutions, including the raid on the New Zealand home of Kim Dotcom, the proprietor of the now-shuttered MegaUpload website.

In the U.S., federal copyright law includes both civil and criminal methods of copyright enforcement. Remedies in civil claims include injunctive relief and monetary damages, and a plaintiff is not necessarily required to prove that the defendant deliberately infringed a copyright. Criminal copyright claims have a much stricter burden of proof regarding a defendant’s mens rea, or state of mind. Prosecutors must prove beyond a reasonable doubt that the defendant acted “willfully” to infringe a copyright. 17 U.S.C. § 506, 18 U.S.C. § 2319.

The criminal statute only applies in certain circumstances, including distributing a copyrighted work on the internet with the knowledge that it is “being prepared for commercial distribution.” 17 U.S.C. § 506(a)(1)(C). Recent amendments to federal copyright law specifically prohibit making and selling recordings of live musical performances, 18 U.S.C. § 2319A; and recording motion pictures during a public exhibition, such as at a movie theater, 18 U.S.C. § 2319B; if either act is done without authorization.

Swedish authorities charged Sunde and three other people involved with the Pirate Bay website with “promoting other people’s infringements of copyright laws” in early 2008. The case went to trial in a Stockholm court in February 2009. Various copyright owners presented testimony about alleged lost revenues due to infringement enabled by Pirate Bay. The court found all four defendants guilty, sentenced them each to one year in prison, and imposed fines of $905,000 each, for a total of $3.62 million.

During one appeal, a court reduced Sunde’s prison sentence to eight months but increased the total fine to $6.5 million. Further appeals were rejected by the Swedish Supreme Court and the European Court of Human Rights. Sunde allegedly evaded arrest for about two years, during which time he was reportedly living in Germany and was on Interpol’s “Most Wanted” list. He was arrested in Skaane, in southern Sweden, in early June 2014, and is now serving his prison sentence.

Board-certified criminal defense attorney Michael J. Brown has spent more than 20 years fighting for the rights of defendants in west Texas. To schedule a confidential consultation with a knowledgeable and experienced advocate, please contact us today online or at (432) 687-5157.

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