10.6092/issn.2531-6133/9782
This article highlights the importance of copyright industries for the developed economies and argues that criminal copyright infringement is a widespread offense, producing major economic losses for stakeholders, negatively impacting creativity, and raising significant cybersecurity and rule of law concerns. The article explains why there is a need for criminal protection of copyright protection and outlines the U.S. framework.In a comprehensive approach, based on a large corpus of data, consisting of cases brought to federal courts, in violation of Section 506 of Title 17 of the U.S. Code, and press releases and reports by law enforcement and industry groups, Section 3 describes the forms and extent of the phenomenon. Section 4 discusses essential aspects involved in the prosecution of these cases. Based on the number of cases brought to courts versus the criminal copyright infringing reports and estimates, the article concludes that this criminal phenomenon is significantly under-prosecuted and proposes a number of measures that could improve the criminal protection of copyrighted works.
application/pdf
2531-6133
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Lucian Vasiu
University of Bologna Law Review
Peer-to-Peer
Criminal Copyright Infringement: Forms, Extent, and Prosecution in the United States
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https://bolognalawreview.unibo.it/
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Articles & Essays
2019-08-23
2019-08-22
2019-08-23
2020-03-17
229-260
UBLR
Lucian Vasiu
2019/08/23
10.6092/issn.2531-6133/9782
229
Babeş-Bolyai University
2531-6133
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Criminal Copyright Infringement: Forms, Extent, and Prosecution in the United States
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4
 ARTICLES & ESSAYS                                                       https://doi.org/10.6092/issn.2531-6133/9782




     Criminal Copyright Infringement: Forms, Extent, and
               Prosecution in the United States

                                     IOANA VASIU & LUCIAN VASIU†


TABLE OF CONTENTS: 1. Introduction; 2. Copyright Protection; 2.1. Introductory Remarks;
2.2. Exclusive Rights; 2.3. Technological and Contractual Protection; 2.4. Criminal
Protection; 3. Nature and Scope of Criminal Copyright Infringement; 4. Prosecution
Aspects; 4.1. Legal Elements; 4.2. Extraterritorial Infringement; 4.3. Sentencing; 4.4.
Prosecution Data; 5. Conclusion.

ABSTRACT: This article highlights the importance of copyright industries for the developed
economies and argues that criminal copyright infringement is a widespread offense,
producing major economic losses for stakeholders, negatively impacting creativity, and
raising signiﬁcant cybersecurity and rule of law concerns. The article explains why there
is a need for criminal protection of copyright protection and outlines the U.S. framework.
In a comprehensive approach, based on a large corpus of data, consisting of cases brought
to federal courts, in violation of Section 506 of Title 17 of the U.S. Code, and press releases
and reports by law enforcement and industry groups, Section 3 describes the forms and
extent of the phenomenon. Section 4 discusses essential aspects involved in the
prosecution of these cases. Based on the number of cases brought to courts versus the
criminal copyright infringing reports and estimates, the article concludes that this
criminal phenomenon is signiﬁcantly under-prosecuted and proposes a number of
measures that could improve the criminal protection of copyrighted works.

KEYWORDS: Copyright; Criminal Infringement; Streaming; Cyberlocker; Peer-to-Peer


JEL CODES: K14, K42, O34




                                      UNIVERSITY OF BOLOGNA LAW REVIEW

                                                   ISSN 2531-6133

                                                   [VOL.4:2 2019]

         This article is released under the terms of Creative Commons Attribution 4.0 International License (CC-BY)



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          1. INTRODUCTION

The role played by intellectual property (hereinafter IP) in supporting the
developed economies is emphasized by several important studies.1 In the
United States, for illustration, in 2014, the eighty-one industries identiﬁed
to be IP-intensive, accounted for about $6.6 trillion in added value (38% of
the GDP), and supported 27.9 million jobs;2 in the European Union, the IP-
intensive industries generate about e5.7 trillion annually (42% of the GDP)
and 38% of all jobs.3
          The industries involved in the creation and distribution of
copyrighted materials represent an important part of the IP-intensive
industries.        Based on the level copyrighted products use, the most
important are the “core industries”, which comprise music, ﬁlm,
software, video, performing arts, and television.4 The “interdependent
industries”, are those involved in the production, manufacture, or sale of
equipment (e.g., computers), and have the important role of facilitating
the creation and use of copyrighted works.5
†
     Ioana Vasiu is Professor at Faculty of Law of the Babeş-Bolyai University (Romania).
    Contact: ioanav3@yahoo.com. She is the Coordinator of the B.B.U. Faculty of Law’s
    Cybercrime Research Unit and a member of the BBU Scientiﬁc Council. Additionally, she
    is currently a member of the Board of Directors of the International Association of Penal
    Law (2014-2019) and external affiliated member of the Ostrom Workshop Program on
    Cybersecurity and Internet Governance, Indiana University (U.S.).
    Lucian Vasiu, Ph.D., MBA, is a computer scientist, expert in information systems security
    and cybercrime prevention.
1
  See, e.g., OECD Committee on Digital Economy Policy, Enquiries into Intellectual Property’s
  Economic Impact, DSTI/ICCP(2014)17/CHAP1/FINAL (Aug. 10, 2015); see also World
  Intellectual Property Organization (WIPO), WIPO Studies on the Economic Contribution of
  the Copyright Industries (2014); United Nations Conference on Trade and Development,
  Creative Economy Report 2010, UNCTAD/DITC/TAB/2010/3 (2010).
2
  See U.S. Patent and Trademark Office, Intellectual Property and the U.S. Economy: 2016
  Update (2016).
3
  See Communication from the Commission to the European Parliament, the Council and the
  European Economic and Social Council on a balanced IP enforcement system responding to
  today’s societal challenges, COM(2017) 707 ﬁnal (Nov. 29, 2017).
4
  OECD,       supra    note    1,    at   219-20;    see     also  Stephen      E.    Siwek,
  Copyright     Industries   in   the   U.S.  Economy:       The   2018    Report    (2018),
  https://iipa.org/ﬁles/uploads/2018/12/2018CpyrtRptFull.pdf.
5
  Id.




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In the E.U., the copyright-intensive industries generate e915 and 11.65
million jobs annually.6           In the U.S., the related ﬁgures are also very
compelling, for the aggregated core copyright industries,7 and the
individual industries: in 2016, the software industry, considering the
direct,      indirect,    and induced impacts,              had a total value-added
contribution to the GDP of $1.14 trillion and supported 10.5 million jobs;8
in 2017, the ﬁlm industry generated revenues of $43.4 billion;9 in 2018,
the music industry generated about $19.6 billion.10                      Moreover, related
research and development (hereinafter R&D) spending is also very
strong;11 in 2018, the revenue for the video game industry was $43.4
billion.12
6
   See European Commission on a Digital Single Market for the Beneﬁt of all Europeans, at 5, NA-
   01-19-407-EN-C (2019).
 7
   In 2017, the core copyright industries generated $1,328 billion and employed about 5.7
   million workers (the total for the copyright industries was $2.2 trillion, with over 11.6
   million workers). See Siwek, supra note 4, at 6, 10.
 8
   See BSA, The Growing $1 Trillion Economic Impact of Software, SOFTWARE.ORG (2017),
   https://software.org/reports/2017-us-software-impact/ .
 9
   See David Robb, U.S. Film Industry Topped $43 Billion In Revenue Last Year, Study Finds,
   But It’s Not All Good News, DEADLINE (July 13, 2018), https://deadline.com/2018/07/ﬁlm-
   industry-revenue-2017-ibisworld-report-gloomy-box-office-1202425692/ .
10
   See Amy Watson, U.S. Music Industry - Statistics & Facts, Statista (Jan. 17, 2019),
   https://www.statista.com/topics/4948/music-industry/ .
11
   See Shanhong Liu, Research and development investments from the software to
   state economies in the United States in 2016, by key state, Statista (Dec. 13, 2018),
   https://www.statista.com/statistics/572831/united-states-key-state-software-
   research-and-development-investment/ (for illustration, the software R&D contributed
   $24,403 billion to the economy of California and $9.6 billion to the economy of
   Washington state).
12
   See U.S. Video Game Sales Reach Record-Breaking $43.4 Billion in 2018, ENTERTAINMENT
   SOFTWARE ASSOCIATION (Jan. 22, 2019), http://www.theesa.com/article/u-s-video-game-
   sales-reach-record-breaking-43-4-billion-2018/ .




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 Digital    technologies,        such      as    streaming,13        cyberlockers,14           and
 peer-to-peer (hereinafter P2P) networking,15 however, increasingly
 threaten protected works, by signiﬁcantly facilitating and expanding the
 scope of copyright infringement.16               The vast majority of the academic
 literature agrees that copyright infringement causes a signiﬁcant
 decrease in sales, reduces the incentives to create new high quality
 content, and negatively impacts the overall social welfare.17 For example,
 as consequence of music piracy alone, the U.S. economy is losing billions
 of dollars and tens of thousands of jobs annually.18
         Copyright infringement also undermines the value of the protected
 works, the ability of right holders to negotiate with clients, and erodes
 business goodwill.19           Moreover, copyright infringement raises very
 signiﬁcant cybersecurity concerns:                    the phenomenon can expose
13
   Streaming “refers to the delivery of digital media content in real time, so that it may
   be watched, listened to, or played contemporaneously with the transfer of the media
   data to a recipient’s device;” for a discussion on streaming and copyright protection, see
   Thomas Y. Lu, Understanding Streaming and Copyright: A Comparison of the United States
   and European Regimes, 13 J. Bus. & Tech. L. 185 (2018). While streaming is an increasingly
   important method to lawfully copyrighted content, streaming piracy represents a massive
   phenomenon, see Motion Picture Association of America, Review of Notorious Markets
   (2018) at 2 (“In 2016, there were an estimated 21.4 billion total visits to streaming piracy
   sites worldwide”).
14
   Also known as “cloud storage”, “web storage”, “webhards”, or “one-click ﬁle hosting
   services” (OCHs), these are sites that offer centralized online storage, allowing download
   (direct download cyberlockers) or hosting content streamed to users (streaming
   cyberlockers). Cyberlockers facilitate criminal copyright infringement and money
   laundering on a very large scale United States v. Kim Dotcom et al., No. 1:12CR3,
   Indictment at 2 (E.D. Va. Jan. 5, 2012). Cyberlockers often provide several links to a ﬁle
   and employ proxy services, which compound the difficulty of enforcement efforts.
15
   P2P networking refers to “several different types of technology that have one thing
   in common: a decentralized infrastructure whereby each participant in the network
   (typically called a ‘peer,’ but sometimes called a ‘node’) acts as both a supplier and
   consumer of information resources;” there are “pure”, “centralized”, and “hybrid” P2P
   networks, see Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1024-6 (9th Cir.
   2013). See the description of the evolution of the P2P architectures in Annemarie Bridy, Is
   Online Copyright Enforcement Scalable, 13 Vand. J. Ent. & Tech. L. 695, 698-704 (2010).
16
   See U.S. Dep’t of Justice, Prosecuting Intellectual Property Crimes (4th ed. 2013); see also
   Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress, Brian t.
   Yeh, H. R. Misc. Doc. No 112-R41975 (2011).
17
   See Brett Danaher, Michael D. Smith & Rahul Telang, Piracy and Copyright Enforcement
   Mechanisms, Working Paper 19150, National Bureau of Economic Research (2013).
18
   See Stephen E. Siwek, The True Cost of Sound Recording Piracy to the U.S.
   Economy, Institute for Policy Innovation (Aug. 2007), https://www.riaa.com/wp-
   content/uploads/2015/09/20120515_SoundRecordingPiracy.pdf ; see also Robert G.
   Hammond, Proﬁt Leak? Pre-Release File Sharing and the Music Industry, 81 Southern
   Economic Journal 387 (2014).
19
   See Synopsys, Inc. v. Inno GRIT, CORP., No. 19-CV-02082-LHK (N.D. Cal. Apr. 23, 2019).


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 consumers to criminals, which, through the surreptitious collection of
 personal information, can result in fraud, identity theft, unwanted ads, or
 other harms,20 such as, computer infection.21 Another concerning aspect
 to take into consideration is the fact that these copyright infringement
 activities can be transnational, and include enterprises such as22
 conspiracy to commit racketeering,23 money laundering schemes,24 or
 alongside distribution of other illicit content, such as child pornography
 or terrorism propaganda videos.25
         An effective copyright protection stimulates creative output26 and
 development conditions in the digital economy.27                         The enforcing of
 copyright comprises a number of methods or mechanisms.28 There is a
20
   See Promoting Investment and Protecting Commerce Online: The ART Act, the NET Act, and
   Illegal Streaming: Hearing Before the Subcomm. on the Intellectual Property, Competition and
   the Internet of the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of Michael
   P. O’Leary, Senior Executive Vice President, Global Policy and External Affairs, Motion
   Picture Association of America).
21
   In these instances, copyright-protected content is used as malware disguise,
   see Andrew V. Moshirnia, Typhoid Mario:               Video Game Piracy as Viral Vector
   and National Security Threat, 93 Ind.         L.J. 975 (2018) (discussing the computer
   contamination risks in connection with copyright infringement); see also BSA,
   Software Management: Security Imperative, Business Opportunity (2018) (underlining
   that, those installing unlicensed software, face a high risk of getting infected
   by computer contaminants); Digital Bait, Digital Citizens Alliance (Dec.                2015),
   https://www.digitalcitizensalliance.org/clientuploads/directory/Reports/digitalbait.pdf
   (one-third of pirate websites had at least one malware incident) at 6.
22
   See United States v. Batato, 833 F.3d 413 (4th Cir. 2016).
23
   See United States v. All Assets Listed in Attachment A, 89 F. Supp. 3d 813, 818 (E.D. Va.
   2015) (in violation of 18 U.S.C. § 1962(d) (2019)).
24
   In violation of 18 U.S.C. § 1956 (2019) (prohibiting the use of criminal activity proceeds for
   various purposes), see United States v. Vaulin, No. 16 CR 438-1 (N.D. Ill. Aug. 4, 2017).
25
   See Dotcom, No. 1:12CR3, Indictment at 11 (E.D. Va.).
26
   See U.S. Chamber of Commerce’s Global Innovation Policy Center, Inspiring Tomorrow, U.S.
   Chamber International IP Index (7th Ed. 2019).
27
   Copyright infringement, for instance, undermines “the continued ability of publishers
   to invest in and publish high quality books and journals relied upon by consumers and
   the scientiﬁc, academic, and medical communities”, see Amicus Curiae Brief in Support
   of Plaintiffs-Appellants, UMG Recordings, Inc. et al. v. Kurbanov, No. 1:18-cv-00957-
   CMH-TCB (No. 19-1124) (2019). The effective protection of copyrighted works supports
   numerous goals, for example, “inclusive and sustainable economic growth, employment
   and decent work for all” (United Nations’ Development Goal 8), see United Nations,
   Sustainable Development Goals (2015), http://www.un.org/sustainabledevelopment/ .
28
   See U.S. Dep’t of Commerce Internet Policy Task Force, Copyright Policy, Creativity, and
   Innovation in the Digital Economy (2013) at 42 et seq.; see also Maria Strong, Enforcement
   Tools in the U.S. Government Toolbox to Support Countries’ Compliance with Copyright
   Obligations, 40 Colum. J.L. & Arts 359 (2017) (discussing the Government tools or
   mechanisms for copyright protection: for instance, bilateral and regional free trade
   agreements and the use of Special 301, an yearly review of the state of IPR protection and
   enforcement worldwide, to encourage the IP law improvement and compliance).



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 very large body of academic literature that discusses aspects pertaining to
 copyright’s role and its protection in the digital environment,29 however,
 there lacks a comprehensive examination of the phenomenon from a
 criminal enforcement perspective.
          This article presents a comprehensive analysis of the most
 important aspects involved in cases of criminal infringement of copyright
 and argues that criminal copyright enforcement should play an important
 role in the protection of creativity, economic investment and growth, and
 the rule of law, in general.             For instance, illegal proceeds,30 obtained
 through the infringement of protected works, can be used in the
 perpetration of serious crimes, such as including human or drug
 trafficking.
          The article proceeds as follows: Part 2, after introductory remarks,
 explains the copyright protection framework and why there is a need for
 criminal copyright provisions. Based on a large corpus of data, consisting
 of cases brought to federal courts, law enforcement press releases, and
 reports from industry groups, Part 3 describes the forms and extent of the
 phenomenon.           Part 4 discusses important issues encountered in the
 prosecution of cases in violation of Section 506 of Title 17 of the U.S.C.:
29
   See Johnathan Ling, Argh, No More Pirating America’s Booty: Improving Copyright Protections
   for American Creators in China, 29 Fordham Intell. Prop. Media & Ent. L.J. 313 (2019);
   see also Martin Husovec, The Promises of Algorithmic Copyright Enforcement: Takedown or
   Staydown? Which Is Superior? And Why?, 42 Colum. J.L. & Arts 53 (2018); Annemarie Bridy,
   Internet Payment Blockades, 67 Fla. L. Rev. 1523 (2016); Sara K. Morgan, The International
   Reach of Criminal Copyright Infringement Laws—Can the Founders of The Pirate Bay Be Held
   Criminally Responsible in the United States For Copyright Infringement Abroad?, 49 Vand. J.
   Transnat’l L. 553 (2016); Jeff Yostanto, The Commercial Felony Streaming Act: The Call For
   Expansion of Criminal Copyright Infringement, 20 Marq. Intellectual Property L. Rev. 315
   (2016); Ross Drath, Hotﬁle, Megaupload, and the Future of Copyright on the Internet: What
   can Cyberlockers Tell Us About DMCA Reform?, 12 J. Marshall Rev. Intell. Prop. L. 205
   (2012); Sean B. Karunaratne, Note, The Case Against Combating Bittorrent Piracy Through
   Mass John Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev. 283 (2012); Julie E. Cohen,
   Copyright as Property in the Post-Industrial Economy: A Research Agenda, 2 Wis. L. Rev. 141
   (2011); Julie L. Ross, A Generation of Racketeers? Eliminating Civil RICO Liability for Copyright
   Infringement, 13 Vand. J. Ent. & Tech. L. 55 (2010); Peter K. Yu, Enforcement, Economics
   and Estimates, 2 WIPO Journal 1 (2010); Mark A. Lemley & R. Anthony Reese, Reducing
   Digital Copyright Infringement without Restricting Innovation, 56 Stan. Tech. L. Rev. 1345
   (2004); Eric Goldman, A Road to No Warez: The No Electronic Theft Act and Criminal Copyright
   Infringement, 82 Or. L. Rev. 369 (2003); Matt Jackson, From Broadcast to Webcast: Copyright
   Law and Streaming Media, 11 Tex. Intell. Prop. L.J. 447 (2003).
30
   Property obtained, directly or indirectly, as the result of criminal copyright infringement
   activity, see 18 U.S.C. § 981 (2019).


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 legal   elements,       extraterritorial      infringement,          sentencing,           and
 prosecution data. Finally, the article outlines a number of measures that
 could improve the criminal protection of copyrighted works.




         2. COPYRIGHT PROTECTION

     2.1. INTRODUCTORY REMARKS

 Copyright protection is territorial: the law recognizes rights as national
 rights or regional rights (established by regional groupings, for instance,
 the E.U.), and it “recognizes the rights as extending only as far as the
 prescriptive jurisdiction of the country or the regional grouping that
 grants or recognizes the Rights”.31 The concept and the related rights in
 the national legislation are, however, consistent with the provisions of
 the Berne Convention for the Protection of Literary and Artistic Works,
 the WIPO Copyright Treaty, the WIPO Performances and Phonograms
 Treaty, the Rome Convention, the Agreement on Trade-Related Aspects
 of Intellectual Property Rights, and other international conventions,
 which partially standardized copyright laws.
         The predominant philosophical framework in the U.S. copyright
 law is utilitarian:32 the fundamental objective of copyright protection is
 to foster creativity,33 to “promote the Progress of Sciences and useful
 Arts”.34 Copyright protection aims to “motivate the creative activity of
 authors and inventors by the provision of a special reward”,35 and to
 ensure that there is a fair return for creative works. “The ultimate aim is,
31
   Marketa Trimble, Undetected Conﬂict-of-Laws Problems in Cross-Border Online Copyright
   Infringement Cases, 18 N.C. J.L. & Tech. 119, 122 (2016).
32
   See Peter S. Menell, Mark A. Lemley & Robert P. Merges, Intellectual Property in the New
   Technological Age: 2018 (2018) at 498-9 (discussing different philosophical perspectives
   of copyright protection).
33
   See Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983).
34
   U.S. Const. Art. I, § 8, cl. 8.
35
   Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).




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 by this incentive, to stimulate artistic creativity for the general public
 good”.36 In other words, “the economic rationale for copyright is that
 without this protection, others could free ride on the efforts of creators
 and hence suppress the supply of creative works”.37
         Copyright protection also aims to trade off “the costs of limiting
 access to a work against the beneﬁts of providing incentives to create the
 work in the ﬁrst place”.38 Therefore, the copyright protection framework
 attempts to maintain a balance between “the interests of copyright
 owners in being compensated for uses of their works and deterring
 infringers from making market-harmful appropriations of their works,
 on the other”39 and the larger public interest, such as education,
 research, or access to information.40
         In the U.S., copyright protection dates back to 1789, when the
 Congress passed “a bill to promote the progress of science and useful arts,
 by securing to authors and inventors the exclusive right to their
 respective writings and discoveries”.41              A variety of works can enjoy
 copyright protection (e.g., literary and musical works, motion pictures,
 sound recordings,          computer programs,            photographs,           audiovisual
 multimedia work, etc.).42 However, the protection is limited to “original
36
   Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975).
37
   OECD, supra note 1, at 218.
38
   William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal
   Stud. 325, 326 (1989).
39
   Pamela Samuelson, The Copyright Principles Project: Directions for Reform, 25 BERKELEY
   TECH. L.J. 1175, 1176 (2010).
40
   See Haochen Sun, Copyright Law as an Engine of Public Interest Protection, 16 NW. J. TECH.
   & INTELL. PROP. 123 (2019) (discussing aspects concerning the fair use doctrine in the
   context of copyright protection); see also Joseph A. Gerber, Locking Out Locke: A New
   Natural Copyright Law, 27 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 613, 644 (2017) (“gives
   owners their due but also facilitates a system for continuing greater social understanding
   and ﬂourishing”); Howard B. Abrams, Originality and Creativity in Copyright Law, LAW
   CONTEMP. PROBS., Spring 1992, at 3 (“Copyright law can be broadly viewed as a system
   seeking an appropriate legal balance between the rights of authors and publishers on one
   hand and the rights of users and consumers on the other”); Universal City Studios, 464
   U.S. at 429 (“balance between the interests of authors and inventors in the control and
   exploitation of their writings and discoveries on the one hand, and society’s competing
   interest in the free ﬂow of ideas, information, and commerce on the other hand”).
41
   Eldred v. Ashcroft, 537 U.S. 186, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003).
42
   Copyrightable subject matter are “original works of authorship ﬁxed in any tangible
   medium of expression”. See 17 U.S.C. § 102(a) (2019).




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 intellectual conceptions of the author”,43 and cannot cover “any idea,
 procedure, process, system, method of operation, concept, principle, or
 discovery”.44 The federal copyright protection can be found primarily in
 Title 17 of the U.S.C.: Sections 101 through 1101 (the “Copyright Act”).
         Copyright protection subsists “in original works of authorship
 ﬁxed in any tangible medium of expression, now known or later
 developed, from which they can be perceived, reproduced, or otherwise
 communicated, directly or with the aid of a machine or device”.45 A work
 is considered “ﬁxed” when its embodiment “is sufficiently permanent or
 stable to permit it to be perceived,                      reproduced,          or otherwise
 communicated for a period of more than transitory duration”.46                                The
 copyright in a protected work, “vests initially in the author or authors of
 the work”, or, when there are more than one author of the work, the
 authors are co-owners of the copyright.47
         Copyright protection “subsists from its creation and, except as
 provided by the following subsections, endures for a term consisting of
 the life of the author and 70 years after the author’s death”; for joint
 works, which have two or more authors, “who did not work for hire, the
 copyright endures for a term consisting of the life of the last surviving
 author and 70 years after such last surviving author’s death”; in the case
 of anonymous, pseudonymous, or works made for hire,48 copyright lasts
 “for a term of 95 years from the year of its ﬁrst publication, or a term of
 120 years from the year of its creation, whichever expires ﬁrst”.49
43
   Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 (1884).
44
   17 U.S.C. § 102(b) (2019).
45
   Id, § 102(a).
46
   Id, § 101.
47
   Id, § 201(a).
48
   A “work made for hire” is “a work prepared by an employee within the scope of his or her
   employment” or “a work specially ordered or commissioned for use as a contribution to
   a collective work, as a part of a motion picture or other audiovisual work, as a translation,
   as a supplementary work, as a compilation, as an instructional text, as a test, as answer
   material for a test, or as an atlas, if the parties expressly agree in a written instrument
   signed by them that the work shall be considered a work made for hire”. See Id, § 101.
49
   Id, § 302.




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     2.2. EXCLUSIVE RIGHTS

 Section 106 of Title 17 of the U.S.C. sets out the copyright owner’s exclusive
 rights:
           (1) to reproduce the copyrighted work in copies or phonorecords;
           (2) to prepare derivative works based upon the copyrighted
           work;
           (3) to distribute copies or phonorecords of the copyrighted work
           to the public by sale or other transfer of ownership, or by rental,
           lease, or lending;
           (4) in the case of literary, musical, dramatic, and choreographic
           works, pantomimes, and motion pictures and other audiovisual
           works, to perform the copyrighted work publicly;
           (5) in the case of literary, musical, dramatic, and choreographic
           works, pantomimes, and pictorial, graphic, or sculptural
           works, including the individual images of a motion picture or
           other audiovisual work, to display the copyrighted work
           publicly; and

           (6) in the case of sound recordings, to perform the copyrighted

           work publicly by means of a digital audio transmission.

 These rights are subject to certain exceptions and limitations.50 The term
 “copies” is deﬁned as “material objects, other than phonorecords, in
 which a work is ﬁxed by any method now known or later developed, and
 from which the work can be perceived, reproduced, or otherwise
 communicated, either directly or with the aid of a machine or device”.51
 “Phonorecords” are “material objects in which sounds, other than those
 accompanying a motion picture or other audiovisual work, are ﬁxed by
 any method now known or later developed, and from which the sounds
 can be perceived, reproduced, or otherwise communicated, either directly
 or with the aid of a machine or device”.52
50
   See Id, §§ 107-122. Unauthorized uses of copyrighted works may not amount to infringing:
   “An unlicensed use of the copyright is not an infringement unless it conﬂicts with one of
   the speciﬁc exclusive rights conferred by the copyright statute”, see Universal City Studios,
   464 U.S. at 447.
51
   Id, § 101.
52
   Id.


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 The term “reproduction” comprises a broad array of conduct, such as
 plagiarizing portions of someone’s work, “ripping” audio tracks into MP3
 format, making a copy of a movie on DVD; etc.53 The term “display”
 refers to showing a copy of a work, “directly or by means of a ﬁlm, slide,
 television image, or any other device or process or, in the case of a motion
 picture    or    other    audiovisual      work,      to   show       individual        images
 nonsequentially”.54
         To perform or display a work “publicly” means—

           (1) to perform or display it at a place open to the public or at any

           place where a substantial number of persons outside of a

           normal circle of a family and its social acquaintances is

           gathered; or (2) to transmit or otherwise communicate a

           performance or display of the work to a place speciﬁed by

           clause (1) or to the public, by means of any device or process,

           whether the members of the public capable of receiving the

           performance or display receive it in the same place or in

           separate places and at the same time or at different times.55

 The term “transmit” means to “communicate it by any device or process
 whereby images or sounds are received beyond the place from which they
 are sent”.56      Illegal streaming of copyrighted works is considered to
 infringe “public performance” or “public display” rights, rather than the
 “reproduction” or “distribution” rights.57 The term “distribution” is not
 deﬁned; it can take several forms, including “by making available a
 copyrighted work, even without disseminating actual copies of it”.58
53
   See U.S. Dep’t of Justice, supra note 16, at 36.
54
   17 U.S.C. § 101 (2019).
55
   Id.
56
   Id.
57
   United States v. Am. Soc’y of Composers, Authors, and Publishers, 485 F. Supp. 2d 438,
   442-47 (S.D.N.Y. 2007).
58
   Vaulin, No. 16 CR 438-1 (N.D. Ill.). See Peter S. Menell, In Search of Copyright’s Lost
   Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. COPYRIGHT SOC’Y U.S.A.
   1 (2011) (for a comprehensive analysis of the term “distribution”). For reference, the
   Italian Copyright Statute, deﬁnes “distribution” in Art. 17 as “the right to market,
   place in circulation or make available to the public, by whatever means and for
   whatever purpose a work or copies thereof and also includes the exclusive right to
   introduce into the territory of the countries of European Community, for distribution,


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    2.3. TECHNOLOGICAL AND CONTRACTUAL PROTECTION

 There are various methods through which protected works can be
 infringed. To protect their works, copyright holders can implement a
 number of binding norms, through technological protection measures
 (hereinafter T.P.M.) and rights management information.59                               These
 measures permit copyright owners to restrict or block the performance,
 execution, display, reproduction, or distribution of protected works, or to
 detect infringement, as applicable. Examples of T.P.M. are access control
 (i.e., through encrypting or content scrambling);                       ﬁngerprinting;60
 watermarking61 (e.g., visual cryptography); alphanumeric activation
 string or procedure; hardware key (dongle) or security device;62 static or
 dynamic        obfuscation;63         blockchain-based            smart         contracts;64
 geo-blocking;65 tracking mechanisms for online uses;66 etc. However,
 technological means of copyright protection are not foolproof, as they are
   copies of a work made in countries not members of the European Community”, l.n.
   633/1941 (It.), https://www.wipo.int/edocs/lexdocs/laws/en/it/it211en.pdf; the Copyright
   Law of Korea, in Art. 2(23), deﬁnes “distribution” as “the transfer by assignment
   or rental of the original or reproduction of works,etc. to the public with or without
   payment by the public”, Law No. 3916, December 31, 1986 (as amended) (Kr.),
   https://www.wipo.int/edocs/lexdocs/laws/en/kr/kr058en.pdf.
59
   Information which identiﬁes copyright-protected content, the owners of the rights and
   the acceptable terms or conditions of use.
60
   The marking of the copyrighted work with the identity of the licensed user, which would
   allow the tracing of infringements.
61
   A watermark is digital data or code, embedded into the protected work (ﬁle), containing
   information on the copyright owner, the permitted uses, etc. See, e.g., Dolley Shukla &
   Manisha Sharma, A Novel Scene-Based Video Watermarking Scheme for Copyright Protection,
   27 J. INTELL. SYS. 47 (2018). For enhanced protection, watermarks can include a variety of
   data, such as Geographic Information Systems (GIS) vector maps, see Ahmed Abubahia &
   Mihaela Cocea, Advancements in GIS Map Copyright Protection Schemes: A Critical Review, 76
   MULTIMEDIA TOOLS APPLICATIONS 12205 (2017).
62
   Inserted in a computer’s port, it makes possible the execution of the associated software
   (if it is not present, the software will not run, or will execute with reduced features).
63
   This technique, used primarily as software protection, involves the transformation of the
   code, to make it impossible or very hard to read/understand or reverse engineer.
64
   Used to automate copyright-related access and transactions, see Michèle Finck &
   Valentina Moscon, Copyright Law on Blockchains: Between New Forms of Rights
   Administration and Digital Rights Management 2.0, 50 IIC: INT’L REV. INTELL. PROP.
   COMPETITION L. 77 (2019); see also Angelo Massagli, The Sample Solution: How Blockchain
   Technology Can Clarify a Divided Copyright Doctrine on Music Sampling, 27 U. MIAMI BUS. L.
   REV. 129 (2018).
65
   This technology allows the restriction of access to content, based on geographical
   location.
66
   See Cadence Design Systems, Inc. v. Pounce Consulting, Inc., No. 17-cv-04732-PJH (SK)
   (N.D. Cal. Apr.1, 2019).


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 vulnerable to a number of attacks, which can result in their circumvention
 or removal.
         Where appropriate,            rights owners can impose contractual
 obligations. Copyright enforcement through Internet Service Providers
 includes notice and action procedures,67 and content ﬁltering or website
 blocking or shutdown.68            Contractual terms for consumers, expressed
 usually through end user licensing agreement (hereinafter E.U.L.A)
 and/or terms of use (hereinafter T.o.U.), stipulate the acceptable or
 permissible forms of use, sharing, or selling. However, a breach of the
 license     agreement        does      not     necessarily       constitute         copyright
 infringement.69
         In order to constitute copyright infringement, licensee’s violation
 of the E.U.L.A. or T.o.U. restrictions, there must be a nexus between the
 condition and the licensor’s exclusive rights of copyright.70 An example
 of such restrictions can be found in Vernor v. Autodesk:71 the software
 maker distributes its products in accordance with the software licensing
 agreement (hereinafter S.L.A.), which must be accepted by consumers
 before they install the product. The S.L.A. “reserves title to the software
 copies and imposes signiﬁcant use and transfer restrictions on its
67
   The “Notice and Takedown” mechanism, enacted by the Digital Millennium Copyright Act
   (DMCA), is considered a standard of copyright enforcement online, see Sharon Bar-Ziv &
   Niva Elkin-Koren, Behind the Scenes of Online Copyright Enforcement: Empirical Evidence on
   Notice & Takedown, 50 CONN. L. REV. 1 (2017). See also Brett Danaher, Michael D. Smith
   & Rahul Telang, Copyright Enforcement in the Digital Age: Empirical Evidence and Policy
   Implications, 60 COMM. ACM, no. 6, 2017, at 68 (proposing demand-side and supply-
   side anti-piracy enforcement policies). For example, Google, as of April 22, 2019, had
   4,062,447,717 URL removal requests and 2,345,678 removal requests for unique top-
   level domains, see Requests to remove content due to copyright, Google Transparency Report
   (2019), https://transparencyreport.google.com/copyright/overview?hl=en .
68
   The examination of data/Internet traffic, in order to detect copyright infringing content
   (for instance, through deep packet inspection (DPI), or the blocking of access to websites
   involved in that copyright infringements), see OECD, The Role of Internet Intermediaries
   in Advancing Public Policy Objectives, at 154, OECD Doc. 58259 (Sept. 14, 2011). See also
   Commission Proposal for a Directive of the European Parliament and of the Council on
   Copyright in the Digital Single Market, art. 13, COM(2016) 593 ﬁnal (Sept. 14, 2016) which
   requests the online platforms to block copyright-infringing materials.
69
   Microsoft Corporation v. A&S Electronics, Inc., No. 15-cv-03570-YGR (N.D. Cal. Dec. 11,
   2015).
70
   See MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928, 841 (9th Cir. 2010).
71
    Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010), cert. denied, 132 S. Ct. 105 (U.S.
   2011).



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 customers”, and, according to their type, have different restrictions.72
 The software publisher enforces and tracks the S.L.A. provisions via serial
 numbers and activation codes.73 The software copies were conveyed as
 non-transferable licenses, and the resale of the software was construed
 as copyright infringement.74 The court held that the copies at issue were
 licensed, and not sold (that is, the customer was a licensee, not an owner),
 therefore, the “sale” of the copies “did not convey ownership”.75
         The sale of a works in digital format does not offer physical
 property interest, and the license terms can prohibit the resale or any
 subsequent transfer.76            The arguments around the right to resell
 copyrighted works, which illustrate the conﬂict between manufacturers’
 interest in maintaining revenues and consumers’ interest in monetizing
 their digital assets, lead to intensive examinations, both scholarly77 and
 in the courts. In Capitol Records v. ReDigi,78 the defendant was a company
 that offered an online marketplace for “used” or “pre-owned” ﬁles,
 purchased on iTunes. ReDigi asserted that the resale by users of their
 digital music ﬁles, purchased lawfully, is protected by the ﬁrst sale
 doctrine.79     The court, however, held that the resell process involves
 “reproductions of the copyrighted code”.80 The appeal court affirmed
 this judgment.81       The proceedings are still ongoing, on May 10, 2019,
72
   Id. at 1103.
73
   See Id. at 1104.
74
   See Id. at 1105.
75
   Id. at 1116.
76
   See Theodore Serra, Rebalancing at Resale: Redigi, Royalties, and the Digital Secondary
   Market, 93 BOS. U. L. REV. 1753, 1759-60 (2013).
77
   See Aaron Perzanowski & Jason Schultz, Reconciling Intellectual and Personal Property, 90
   NOTRE DAME L. REV. 1211 (2015).
78
   Capitol Records, LLC v. ReDigi, Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013).
79
   Id. at 655.
80
   Id. at 649-651. The analysis of these issues is beyond the scope of this article, for in-
   depth discussions, see Kristin Cobb, The Implications of Licensing Agreements and the First
   Sale Doctrine on U.S. and EU Secondary Markets for Digital Goods, 24 DUKE J. COMP. INT’L L.
   529 (2014); John T. Soma & Michael K. Kugler, Why Rent When You Can Own: How ReDigi,
   Apple, and Amazon Will Use the Cloud and the Digital First Sale Doctrine to Resell Music, E-
   Books, Games, and Movies, 15 N. C. J. L. TECH. 425 (2014).
81
   Capitol Records, LLC v. ReDigi, Inc., 910 F.3d 649 (2d Cir. 2018).




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 ReDigi requested the case to be heard at the U.S. Supreme Court.82



     2.4. CRIMINAL PROTECTION

 In situations where their rights were infringed, copyright owners can seek
 remedies through civil suits.83           However, they often lack the required
 resources to effectively combat infringements through civil actions, such
 actions can alienate consumers, and are “unlikely to yield the copyright
 holder the full amount of awarded damages”.84                              Moreover, the
 increasingly sophisticated deceit mechanisms used by perpetrators (e.g.,
 reverse proxy services or third-party linking, aiming to make it difficult
 to identify the actual host used in the infringing activity, or the use of
 offshore companies, to mask the identity of the scheme operator), as well
 as, in a number of cases, the large-scale scope of the infringing activity
 and, in connection with this, the perpetration of other offenses, impose
 criminal provisions.85 Criminal copyright provisions address this fact by
 proscribing the willful infringement of protected works, undertaken for
 commercial gain or for other personal beneﬁts. Additionally, criminal
 prosecution is important from a general crime deterrence perspective.
         Worldwide,       criminal      provisions     differ     in    terms       of    proﬁt
 motivation, criminality thresholds, criminal acts, and whether there
82
   See ReDigi Heads To The Supreme Court, PR NEWSWIRE (May 14, 2019),
   https://www.prnewswire.com/news-releases/redigi-heads-to-the-supreme-court-
   300849438.html.
83
   See 17 U.S.C. § 411 (2019); see also Christopher Anthony Cotropia & James Gibson,
   Copyright’s Topography: An Empirical Study of Copyright Litigation, 92 TEX. L. REV. 1981
   (2014) (presenting the results of a study of about one thousand copyright cases).
84
   Geraldine Szott Moohr, Deﬁning Overcriminalization Through Cost-Beneﬁt Analysis: The
   Example of Criminal Copyright Laws, 54 AM. U. L. REV. 783, 799 (2005).
85
   Criminal measures also satisfy the Agreement on Trade-Related Aspects of Intellectual
   Property Rights art. 61, Apr. 15, 1994, 1869 U.N.T.S. 299 (“Members shall provide for
   criminal procedures and penalties to be applied at least in cases of wilful trademark
   counterfeiting or copyright piracy on a commercial scale. Remedies available shall include
   imprisonment and/or monetary ﬁnes sufficient to provide a deterrent”.) and Council of
   Europe Convention on Action Against Trafficking in Human Beings art. 10, May 16, 2005,
   ETS 185, the multilateral treaty on ﬁghting cybercrimes, to which the U.S. is party (“Each
   Party shall adopt such legislative and other measures as may be necessary to establish as
   criminal offences under its domestic law the infringement of copyright”).




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 should be a complaint by the victim.86                  In 1897, the U.S. Congress
 criminalized copyright for the ﬁrst time.87 The copyright legal framework
 has been modernized since.88 Criminal copyright infringement can take
 numerous forms, which are reﬂected in the comprehensive legal
 framework: copyright infringement for proﬁt;89 copyright infringement
 without a proﬁt motive;90 pre-release distribution of a copyrighted work
 over a publicly accessible computer network;91                        circumvention of
 copyright protection systems;92 trafficking in counterfeit or illicit labels
 or counterfeit documentation and packaging for copyrighted works;93
 unauthorized ﬁxation of and trafficking in sound recordings and music
 videos of live musical performances;94 and unauthorized recording of
 motion pictures in exhibition facilities.95
         Copyright “infringer” is a person that “violates any of the
 exclusive rights of the copyright owner as provided by sections 106
 through 122 or of the author as provided in section 106A (a), or who
 imports copies or phonorecords into the U.S. in violation of section
 602”.96 Infringement can take numerous forms, such as unauthorized
86
   In Korea, for instance, according to Art. 136 of the Copyright Act (Jeojakkwonbeob),
   the scope of criminal copyright provisions does not have a threshold for criminality, no
   commercial purpose requirement, and criminal liability extends to most infringing acts
   proscribed under the copyright law, see Law No. 3916, December 31, 1986 (as amended)
   (Kr.), available at https://www.wipo.int/edocs/lexdocs/laws/en/kr/kr058en.pdf .
87
   Act of January 6, 1897, ch. 4, 29 Stat. 481, 482.
88
   See the Amendments to the Copyright Act as a result of the Orrin G. Hatch–Bob Goodlatte
   Music Modernization Act of 2018; see also Prioritizing Resources and Organization for
   Intellectual Property (PRO IP) Act of 2008; Artists’ Rights and Theft Prevention (ART) Act
   of 2005; Digital Theft Deterrence and Copyright Damages Improvement Act of 1999; No
   Electronic Theft (NET) Act of 1997; Anticounterfeiting Consumer Protection Act of 1996;
   Copyright Felony Act of 1992; Sentencing Reform Act of 1984; Piracy and Counterfeiting
   Amendments Act of 1982. For a review of the criminal copyright legislative history, see
   Benton Martin & Jeremiah Newhall, Criminal Copyright Enforcement against Filesharing
   Services, 15 N.C. J.L. TECH. 101, 107-11 (2013).
89
   See 17 U.S.C. § 506(a)(1)(A) (2016), 18 U.S.C. § 2319(b) (1986).
90
   See 17 U.S.C. § 506(a)(1)(B) (2016), 18 U.S.C. § 2319(c) (1986).
91
   See 17 U.S.C. § 506(a)(1)(C) (2016), 18 U.S.C. § 2319(d) (1986). See examples and a
   discussion about pre-release piracy in Liye Ma et al., An Empirical Analysis of the Impact
   of Pre-release Movie Piracy on Box Office Revenue, 25 Information Systems Research 590
   (2014).
92
   See 17 U.S.C. § 1201 (2016).
93
   See 18 U.S.C. § 2318 (2019).
94
   See Id, § 2319A.
95
   See Id, § 2319B.
96
   17 U.S.C. § 501(a) (2019).



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 reproduction, distribution, modiﬁcation, selling, leasing, marketing,
 giving away of protected works, etc.97 Defendants can also be charged
 with violation of 18 U.S.C. § 2 (aiding and abetting criminal copyright
 infringement),98 or conspiracy99 .
          In     general,       direct     copyright        infringement           requires       the
 demonstration of ownership of the allegedly infringed work and the
 violation of at least one exclusive right granted under 17 U.S.C. § 106.100
 For civil liability, the general intent to copy is required; criminal liability,
 on the other hand, requires proof of speciﬁc intent to violate the law.101
          The infringement of a copyrighted work is not always a
 straightforward determination, as underlined by the arguments found in
 a number of cases, for example: do search engines infringe copyrighted
 images when “display[ing] them on an ‘image search’ function in the
 form of ‘thumbnails’ but not infringe when, through inline linking, it
 displays copyrighted images served by another website?”;102                                      the
 embedding103 of tweets on websites could violate the exclusive display
 right?104 What adaptation of the source code can be authorized under 17
 U.S.C. § 117?105 For the purposes of 17 U.S.C. § 106(4), does playing of a
 video game and posting of footage of that gameplay on YouTube, amount
 to performing a copyrighted work publicly?106
97
     See Parts 3 and 4, infra.
98
     “Whoever commits an offense against the United States or aids, abets, counsels,
     commands, induces or procures its commission, is punishable as a principal”; see, e.g.,
     Vaulin, No. 16 CR 438-1 (N.D. Ill.).
 99
     See 18 U.S.C. § 371 (2019); see, e.g., United States v. All Assets Listed in Attachment A, Civil
     No. 1: 14-cv-969 (E.D. Va. Feb. 27, 2015).
100
     See A. & M. Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
 101
     See Daniel Newman, Mangmang Cai & Rebecca Heugstenberg, Intellectual Property Crimes,
     44 AM. CRIM. L. REV. 693 (2007).
102
     Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006).
103
     The HTML code that directs browsers to the third-party server, to retrieve content
     from a certain outside source; for a discussion on embedding of content and copyright
     infringement, see Jane C. Ginsburg & Luke A. Budiardjo, Embedding Content or Interring
     Copyright: Does the Internet Need the “Server Rule”?, 42 COLUM. J.L. ARTS 417 (2019).
104
     See Goldman v. Breitbart News Network, LLC, No. 17-cv-3144 (KBF) (S.D.N.Y. Feb. 15,
     2018).
105
     See Universal Instruments Corp. v. Micro Systems Engineering, Inc., No. 17-2748-cv (2d
     Cir. May 8, 2019).
106
     See Epic Games, Inc. v. Mendes, No. 17-cv-06223-LB (N.D. Cal. June 12, 2018).




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  Section 506 of Title 17 of the U.S.C. proscribes the willful infringement of a
  copyright if

           the    infringement      was   committed—(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; or (C) by the distribution

           of a work being prepared for commercial distribution, by

           making it available on a computer network accessible to

           members of the public, if such person knew or should have

           known that the work was intended for commercial distribution.

  The term “ﬁnancial gain” includes “receipt, or expectation of receipt, of
  anything of value, including the receipt of other copyrighted works”.107
  Section 503 of Title 17 of the U.S.C. contains provisions for the
  impounding and disposition of infringing articles, while Section 2323 of
  Title 18 of the U.S.C. contains forfeiture, destruction, and restitution
  provisions.108     The punishment for criminal copyright infringement is
  imprisonment (up to ten years) or a ﬁne (up to $250,000).109
107
    17 U.S.C. § 101 (2019).
108
    18 U.S.C. § 2323 (2019) provides that “when a person is convicted of an offense under
    section 506 of title 17 or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of
    this title, the court, pursuant to sections 3556, 3663A, and 3664 of this title, shall order
    the person to pay restitution to any victim of the offense as an offense against property
    referred to in section 3663A(c)(1)(A)(ii) of this title.” If the government shows probable
    cause that the property in question is connected to the perpetration of criminal copyright
    infringement, courts will issue a seizure warrant under the authority of 18 U.S.C. §§ 981
    and 2323. Seizure and forfeiture are different terms: in the online context, “seizure”
    results in “the domain name registry to redirect a suspected domain name to display
    a banner explaining that the site has been seized”, while “forfeiture” involves “the
    permanent involuntary divestiture of property to the government or other party without
    compensation due to breach or default of a legal obligation or commission of a crime”,
    see Karen Kopel, Operation Seizing Our Sites: How the Federal Government is Taking Domain
    Names Without Prior Notice, 28 BERKELEY TECH. L.J. 859, 866 (2013). See also, Michael
    Joseph Harrell, Fighting Piracy with Censorship: The Operation in Our Sites Domain Seizures
    v. Free Speech, 21 J. INTELL. PROP. L. 137 (2013); Brett Danaher & Michael D. Smith, Gone
    in 60 Seconds: The Impact of the Megaupload Shutdown on Movie Sales, 33 INT’L. J. INDUS.
    ORG. 1, 8 (2014) (showing that the shutdown of Megaupload, a very large cyberlocker and
    ﬁlesharing website, resulted in increased revenues for motion picture studios).
109
    18 U.S.C. § 2319 (2019).




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          3. NATURE AND SCOPE OF CRIMINAL COPYRIGHT INFRINGEMENT

  Criminal copyright infringement can have physical and/or cyberspace
  components. The protected content can be obtained in a number of ways:
  illegal copying or unauthorized use of protected works; bootlegging;110
  unauthorized stream ripping sites;111 etc. The illegal distribution vectors
  can take the form of selling counterfeited copies or illegally reproduced
  music, movies, and television programs, at ﬂea markets;112 warehouse for
  counterfeited copies distribution;113 counterfeit software sold online;114
  CD and DVD replication plants;115 etc.
          Other signiﬁcant copyright infringement vectors are: the use of
  “key generators”, in order to create serial numbers, used to activate
  protected products;116 the selling on eBay of pirated computer programs,
  with codes that allow the update that software;117                          the trading of
  unauthorized product key cards, containing codes that allow to fully
  exploit versions of copyrighted software;118                      the dissemination of
  unauthorized copies of reinstallation CDs;119 Internet ﬁle-sharing;120 TV
  signal theft;121 the unauthorized decryption of premium TV channel;122
  etc.
110
     See United States v. Armstead, 524 F.3d 442, 443 (4th Cir. 2008).
111
     These sites convert, without authorization, copyrighted works from licensed streaming
     sites into downloadable ﬁles.
112
     See United States v. Frison, 825 F.3d 437 (8th Cir. 2016); see also United States v.
     Henneberger, Criminal Action No. 2: 13-CR-167-1 (S.D. Tex. Sept. 10, 2015).
 113
     See Press Release, Three Indicted for Criminal Copyright Infringement, U.S. Dep’t
     of Justice, (Mar 21, 2013), https://archives.fbi.gov/archives/sacramento/press-
     releases/2013/three-indicted-for-criminal-copyright-infringement .
114
     See United States v. Kononchuk, 485 F.3d 199 (3d Cir. 2007).
115
     See United States v. Liu, 731 F.3d 982 (9th Cir. 2013).
116
     United States v. Anderson, 741 F.3d 938 (9th Cir. 2013).
117
     See United States v. Fair, 699 F.3d 508 (D.C. Cir. 2012).
118
     Florida Man Pleads Guilty to Software Piracy Scheme, U.S. Dep’t of Justice, (Mar 2, 2017),
     https://www.justice.gov/usao-wdmo/pr/ﬂorida-man-pleads-guilty-software-piracy-
     scheme.
119
     See United States v. Lundgren, No. 17-12466, Non-Argument Calendar (11th Cir. Apr. 11,
     2018) (the defendant admitted to have shipped about 28,000 counterfeit discs).
120
     See Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012).
121
     This involves “illegally tapping into cable TV systems as well as receiving satellite signals
     without authorization”, see HEDI NASHERI, ADDRESSING GLOBAL SCOPE OF INTELLECTUAL
     PROPERTY LAW 18 (2005); see, e.g., Operation Decrypt, in which the defendants developed
     sophisticated tools that allowed them to steal satellite TV signals, resulting in losses of
     about $15 million to the victims, Id. at 53.
122
     See United States v. Manzer, 69 F.3d 222 (8th Cir. 1995).


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  Online technologies, as they facilitate especially in commercial-scale
  infringement or access to wide audiences, are often used by perpetrators:
  for instance, illegally uploading123 of movies online prior to their release
  in theaters;124 illegal posting of movies on Facebook pages;125 eBay selling
  of counterfeited products, shipped from abroad;126 selling of illegally
  copied products on Amazon;127 etc. More sophisticated technologies are
  increasingly used, to provide infringing content on a very large scale,
  often for monetary gain:            for example, Internet Protocol Television
  services;128     linking and streaming websites;129                    direct download
  cyberlockers and illicit streaming devices (hereinafter I.S.D.s)130 and
123
    “Uploading” means “making an infringing item available on the Internet or a similar
    electronic bulletin board with the intent to enable other persons to (A) download or
    otherwise copy the infringing item; or (B) have access to the infringing item, including by
    storing the infringing item as an openly shared ﬁle. “Uploading” does not include merely
    downloading or installing an infringing item on a hard drive on a defendant’s personal
    computer unless the infringing item is an openly shared ﬁle”. See U.S. Sentencing
    Guidelines § 2B5.3, cmt. n. 1 (2018).
124
    See Lancaster Man Admits Illegally Uploading Screeners of ‘The Revenant’ and
    ‘The Peanuts Movie’ to BitTorrent Website, U.S. Dep’t of Justice (Feb 26, 2016),
    https://www.justice.gov/usao-cdca/pr/lancaster-man-admits-illegally-uploading-
    screeners-revenant-and-peanuts-movie (as result of the upload, the rights owner
    suffered losses of over $1 million).
125
    See Fresno Man Arrested on Federal Copyright Violations for Alleged Illegal
    Upload of ‘Deadpool’ Movie to the Internet, U.S. Dep’t of Justice (Jun 13, 2017),
    https://www.justice.gov/usao-cdca/pr/fresno-man-arrested-federal-copyright-
    violations-alleged-illegal-upload-deadpool-movi-0.
126
    See United States v. Edward, No. 12-20705 (E.D. Mich. Dec. 10, 2013).
127
    See United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006).
128
    See These services “provide stolen telecommunication signals/channels to a global
    audience via dedicated web portals, third-party applications and piracy devices
    conﬁgured to access the service”, see Motion Picture Association of America, supra note
    13.
129
    See Id. at 4-5: the ring of piracy services: b9good.com, which had 27.5 million visits
    per month; Cda.pl, which had 68.13 million worldwide visitors; Dytt8.net, which received
    around 20 million visits per month, users accessing more than 12,000 infringing ﬁlm
    titles; etc.
130
    See Office of the United States Trade Representative, 2017 Out-of-Cycle Review of Notorious
    Markets (2018) at 9: “ISD piracy ecosystem, including unlawful device sellers and
    unlicensed video providers and video hosts, stands to bring in revenue of an estimated
    $840 million a year in North America alone, at a cost to the entertainment industry of
    roughly $4-5 billion a year”. I.S.D.s harm copyright owners and impair competition,
    by harming legitimate streaming services (e.g., Netﬂix or Hulu), see Federal Trade
    Commission, Competition and Consumer Protection in the 21st Century (2018) at 187.




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 services;131 ﬁle-swapping services;132 P2P networks133 and BitTorrent134
 portals.
          The survey of cases reveals that the most commonly infringed
 works are musical compositions, computer programs, movies, video
 games, and television shows. The infringing activity can be on a massive
 scale. For instance, Megaupload, a worldwide criminal conspiracy, had
 “more than one billion visitors in its history, more than 180 million
 registered users to date, and an average of ﬁfty million daily visits, and to
 account for approximately four percent of the total traffic on the
 Internet;”135 Operation D-Elite involved over 133,000 members, involved
 in the illegal distribution of tens of thousand of works, including movies
 before their commercial distribution in retail stores or theaters, the
 number of downloads amounting to over two million.136
          In numerous cases, the calculated harm to copyright holders was
 very signiﬁcant: $6.3 billion, through the unauthorized downloading of
 about a billion copies of protected works;137 over $100 million, in a
 scheme that involved the selling of illicit, unauthorized, and counterfeit
 software products;138 over $500 million in the “Mega Conspiracy”
131
    For instance, for illegally streamed copyrighted sporting telecasts, see Website Operator
    Indicted for Illegally Streaming Copyrighted Sporting Events,       U.S. Immigration and
    Customs Enforcement (Oct. 25, 2011), https://www.ice.gov/news/releases/website-
    operator-indicted-illegally-streaming-copyrighted-sporting-events; see also Motion
    Picture Association of America, supra note 13, at 7-9 (e.g., Openload.co/oload.tv,
    Rapidgator.net, Rapidvideo.com, etc.).
132
    See In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).
133
    See Neil Fried, Comments of the Motion Picture Association of America, Inc., In the Matter of
    Competition and Consumer Protection in the 21st Century, Hearing 4: Oct. 23-24, 2018
    (the number of pirated movies and television programs downloaded in the U.S. in 2017
    using p2p protocols is estimated to be 542 millions).
134
    BitTorrent is a protocol used for P2P ﬁle sharing, allowing the rapid transfer of large
    amounts of data over the Internet, see Strike 3 Holdings, LLC v. Doe, No. 18-cv-01173-
    TSH (N.D. Cal. Mar. 20, 2019).
135
    Dotcom, No. 1:12CR3, Indictment at 2 (E.D. Va.).
136
    See    Federal    Law     Enforcement     Announces     Operation    D-Elite,      Crackdown
    on    P2P    Piracy    Network,      U.S.    Dep’t   of    Justice   (May      25,     2005),
    http://www.usdoj.gov/opa/pr/2005/May/05_crm_291.htm.
137
    See Owner of Sharebeast.com sentenced for copyright infringement, U.S. Dep’t of Justice(Mar
    22, 2018), https://www.justice.gov/usao-ndga/pr/owner-sharebeastcom-sentenced-
    copyright-infringement.
138
    See Six Defendants Plead Guilty to $100 Million Software Piracy Scheme, U.S. Dep’t of Justice
    (Dec 17, 2015), https://www.justice.gov/usao-wdmo/pr/six-defendants-plead-guilty-
    100-million-software-piracy-scheme.



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  copyright infringement scheme;139 over $1 million in the “Pirates With
  Attitudes” case;140         over $1.7 million in the SnappzMarket Group
  conspiracy.141
          In United States v.        All Assets,142 the conspiracy made over $150
  million in subscription and advertising fees. To conceal the copyright
  infringement illegal activity, the conspirators allegedly took a number of
  affirmative steps, including the exclusion of infringing ﬁles from the
  most downloaded list, the creation of fake accounts on the Megaupload
  and Megavideo sites, to upload ﬁles so that these would look as uploaded
  by users, not by the conspirators, and use of third party “linking” and
  “referrer” websites.143
          In another major criminal copyright infringement case, the
  defendants       operated       KAT,     which      allowed       the     distribution         and
  reproduction of copyrighted works online, without the copyright owner’s
  permission.144 The illegal proceeds of this conspiracy, in the order to
  millions of dollars, came from user donations and online advertisers.145
  In order to circumvent seizures and civil lawsuits, the servers used in this
  scheme were placed and moved in several locations around the world.146
  As part of their operations concealment, the defendants operated KAT and
  the related sites under the “Cryptoneat”, a ﬁrm based in Ukraine.147
139
     See Batato, 833 F.3d (the reported income exceeding $175 million).
140
     See United States v. Slater, 348 F.3d 666 (7th Cir. 2003); United States v. Rothberg, 222 F.
     Supp. 2d 1009 (N.D. Ill. 2002) (the defendants facilitated the unauthorized dissemination
     of copyrighted software online).
 141
     See Fourth Conspirator in SnappzMarket Android Mobile Device App Piracy Group Convicted of
     Conspiracy to Commit Criminal Copyright Infringement, U.S. Dep’t of Justice (Nov. 17, 2016),
     https://www.justice.gov/opa/pr/fourth-conspirator-snappzmarket-android-mobile-
     device-app-piracy-group-convicted-conspiracy (the conspirators illegally reproduced
     and distributed over 1 million of Android mobile device apps that were copyrighted).
142
     United States v. All Assets Listed in Attachment A, Civil No. 1: 14-cv-969 (E.D. Va. Mar.
     25, 2015).
143
     Id. (the linking/referrer sites do not host actual content, they link the users to third party
     sites).
144
     See Vaulin, No. 16 CR 438-1 (N.D. Ill.).
145
     See Id.
146
     See Id.
147
     See Id.




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          4. PROSECUTION ASPECTS

  The differences between criminal and civil infringement regard intent,
  willfulness, liabilities, and procedural and evidentiary requirements.
  Criminal proceedings can be initiated either by the owner of the rights or
  by a prosecutor.148          Prosecutors have “wide discretion” in criminal
  matters, and may decline to prosecute if they consider that there is not
  enough to prosecution merit or if they consider that acceptable
  alternative are available (for instance, restitution).149                     The elements
  common to all criminal copyright offenses are the existence of a valid
  copyright and the willful infringement by reproduction or distribution of
  the copyrighted work.150



      4.1. LEGAL ELEMENTS

  To prove willful acting, the Government must demonstrate that the
  defendants knew that their acts infringed a valid copyright,151 that the
  defendants “acted with reckless disregard for, or willful blindness to,
  plaintiff’s rights”.152 This aspect was raised in United States v. Wittich,153
  where the defendants argued that “the [G]overnment has not properly
  alleged the copyright at issue here”, that “there is no evidence that this
  copyright was registered with the Copyright Office”, a “prerequisite to a
  copyright infringement claim”, and that the copyright statute is vague154
  as applied to these defendants, and therefore, must be construed as
148
     See INT’L ASSOCIATION FOR THE PROT. OF INTELLECTUAL PROP., CRIMINAL PROTECTION OF IP 12
     (2018).
149
     “Prosecutors have essentially no formal external checks on their discretion”, see also
     Darryl K. Brown, Cost-Beneﬁt Analysis in Criminal Law, 92 Calif. L. Rev. 323, 331 (2004);
     see also AIPPI, supra note 148, at 12.
150
     See U.S. Dep’t of Justice, supra note 16, at 16.
 151
     See Id. at 16-8. To prove the existence of a valid copyright, the prosecution usually
     presents a certiﬁcate of registration, see also id. at 23.
152
     Boffoli v. Atemis, No. C18-795 TSZ (W.D. Wash. Feb. 7, 2019).
153
     United States v. Wittich, 54 F. Supp. 3d 613 (E.D. La. 2014).
154
     A criminal statute “must be sufficiently explicit to inform those who are subject to it what
     conduct on their part will render them liable to its penalties”, see Connally v. General
     Constr. Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322, 391 (1926).




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  unconstitutional.155 Nonetheless, the court held that “the plain language
  of 17 U.S.C. §§ 102, 408, 506(a)(1)(A), 1201(a)(2)(A) and 1204(a)(1)
  establish that copyright protection may attach to a work regardless of
  whether a copyright is registered”.156 Criminal prosecution for copyright
  infringement “do[es] not require that the copyright at issue be
  registered”.157      The statutes cannot be construed “unconstitutionally
  vague simply because they do not require registration of the copyrighted
  work”.158
          Willful    infringement        does     not    require      actual      knowledge,
  “recklessness or willful blindness will be sufficient“.159                      In criminal
  copyright     infringement        cases,     courts     interpret      “willfulness”          as
  infringement committed “with knowledge that the defendant’s conduct
  constituted copyright infringement for purposes of 17 U.S.C. § 506(a)”.160
  In United States v. Anderson, for instance, the court of appeals held that the
  infringement “is willful when (1) the defendant engaged in acts that
  infringed the copyrights, and (2) knew that those actions may infringe the
  copyrights [or acted with reckless disregard for, or willful blindness to the
  copyright holder’s rights]”.161            “Willfulness” often can be proven by
  inference, based on the existing evidence.162
          A very good illustration for the consideration of this element is
  United States v. Liu, where the defendant denied copyright infringement
  knowledge or involvement:              his company manufactured DVDs for a
  different ﬁrm; when the defendant realized that he was deceived about
155
    See Id. at 615.
156
    Id. at 629.
157
    Id.
158
    Id.
159
    Unicolors, Inc. v. Urban Outﬁtters, Inc., 853 F.3d 980, 992 (9th Cir. 2017); Erickson
    Productions, Inc. v. Kast, No. 17-17157 (9th Cir. May 1, 2019).
160
    United States v. Acevedo-Cruz, Criminal No. 04-0381 (DRD) (D.P.R. Feb. 23, 2006);
    see also Jonathan S. Masur & Christopher Buccafusco, Innovation and Incarceration: An
    Economic Analysis of Criminal Intellectual Property Law, 87 S. CAL. L. REV. 275, 375 (2014)
    (“the defendant subjectively knew that the infringed works were subject to copyright and
    that his conduct was unlawful”). Infringement may be unintentional, for instance, in
    cases of misinformation regarding licensing rights or obligations.
161
    Anderson, 741 F.3d at 944.
162
    U.S. Dep’t of Justice, supra note 16, at 30-2.




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  the copyrights permissions involved, he ﬁled a lawsuit against the
  latter.163 The court of appeals held that “willfully”, as used in 17 U.S.C. §
  506(a), connotes a “voluntary, intentional violation of a known legal
  duty”.164 The court went on and held that “deﬁning ‘willfully infringed’
  without any requirement that the defendant knew he was committing
  copyright infringement, the district court instructed the jury to apply a
  civil liability standard”.165 Moreover, the court considered that the error
  was compounded by the instruction given to the jury that “[a]n act is
  done ‘willfully’ if the act is done knowingly and intentionally, not
  through ignorance, mistake, or accident”.166 The court’s conclusion was
  that, by deﬁning willfulness such that the jury could have convicted the
  defendant without ﬁnding that he knew that his actions were unlawful,
  the district court erred.167



      4.2. EXTRATERRITORIAL INFRINGEMENT

  Copyright’s territorial nature gives owners rights within a certain
  territory. The Copyright Act does not apply extraterritorially, if the acts of
  infringement occur entirely abroad. However, the online environment
  involves activities and people that span multiple jurisdictions.                         The
  copyright infringement acts committed online “have the potential to
  cause effects that are territorially unlimited unless the infringer - or a
  service the infringer uses for committing the acts - limits the territory
  where the effects might be felt”.168
          In United States v.      Vaulin,169 for example, the co-defendants,
  charged with operating websites involved in criminal copyright
  infringement, argued that they cannot be prosecuted under the Copyright
163
    Liu, 731 F.3d at 986.
164
    Id. at 990.
165
    Id. at 991.
166
    Id.
167
    See Id. at 992.
168
    Marketa Trimble, Undetected Conﬂict-of-Laws Problems in Cross-Border Online Copyright
    Infringement Cases, 18 N.C. J.L. TECH. 119, 122 (2016).
169
    Vaulin, No. 16 CR 438-1 (N.D. Ill.).


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  Act for any extraterritorial infringement, the court held that “the core
  theory underlying the indictment is that Vaulin aided, abetted, and
  conspired with users of his network to commit criminal copyright
  infringement in the United States”. This approach can also be found in
  Spanski Enterprises v. Telewizja Polska,170 where the court held that one of
  plaintiff’s rights was infringed when,                  without authorization,               the
  defendant made TV programs, protected by copyright, available to stream
  inside the U.S., even though the stream was hosted outside the U.S.
          An important aspect of these cases regards the extradition of
  defendants, as illustrated, for instance, by the Dotcom case.                                The
  extradition of the defendant, the leader of the Mega Conspiracy, a citizen
  of Finland and Germany and a resident of New Zealand and Hong Kong,171
  already spanning seven years, is still pending in New Zealand.172



      4.3. SENTENCING

  The U.S. Sentencing Guidelines (U.S.S.G.) for criminal copyright
  infringement are contained in Section 2B5.3, which provides for an
  offense level of 8. The offense level for violations of 17 U.S.C. § 506 is
  determined, among other factors, by the value of the infringed materials
  that can be attributed to the defendants. The amount of infringement is
  the “retail value” of the “infringed item” or “infringing item”,
  multiplied by the number of infringing items, depending on the nature of
  the case.173 “Retail value” of an infringed item is deﬁned as “the retail
  price of that item in the market in which it is sold”.174
170
    Spanski Enterprises v. Telewizja Polska, S.A., No. 17-7051 (D.C. Cir. Mar. 2, 2018).
171
    See Dotcom, No. 1:12CR3, Indictment at 13 (E.D. Va.).
172
    See     Melissa     Nightingale,   Kim      Dotcom     Extradition     Legal     Battle   in
    Supreme      Court    Coming    to  an    End,      NZ   HERALD      (June     17,    2019),
    https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12241050 (the case
    reached the Supreme Court, the main issue being whether copyright infringement
    amounts to a criminal offense under the New Zealand law, making it an extradition
    offense; even if the court grants the extradition, the Minister of Justice would have to
    sign the extradition paperwork, and this could lead to a request for judicial review and
    further appeals).
173
    U.S. Sentencing Guidelines Manual § 2B5.3, cmt. n. 2(A).
174
    Id, § 2B5.3, cmt. n. 2(C).


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  For infringement amounts that exceed $6,500, the base offense level is
  increased by the number of levels from the table in §2B1.1, according to
  the amount in question.175 In cases where the number of infringing items
  cannot be determined precisely, reasonable estimate of the infringement
  amount will be used,            determined from the relevant information
  available.176    A reduction by two levels is applied in cases where the
  offense was not committed for “commercial advantage or private
  ﬁnancial gain”.177
          In United States v. Armstead, the court of appeals held that

           ‘value’ is measured not only by actual transactions that deﬁne a

           market, but also by face or par values assigned to commodities

           or goods before reaching the market, and the statute instructs

           that the greatest of those ‘values’ be used.[178 ] ‘Retail,’ which is

           not deﬁned at all, refers, in its ordinary meaning, to sales

           transactions of commodities or goods in small quantities to

           ultimate consumers.179

  For an example of the U.S.S.G. application, in United States v. Karadimos,
  the defendant-appellant argued that, by using manufacturer’s suggested
  retail prices for the software titles seized from him, the district court
  clearly calculated erroneously the amount of copyright infringement
  under U.S.S.G. § 2B5.3, cmt.              n.2(A).180 The appeal court held that
  “government’s proffer of the manufacturer’s suggested retail price did
  not demonstrate by clear and convincing evidence the retail value of the
  infringed software items in the market in which they were sold. U.S.S.G. §
  2B5.3, cmt.       n.2(C)”, and remanded the case for a new sentencing
  hearing.181
175
    See Id. §2B5.3(b)(1)(B).
176
    See Id, §2B5.3, cmt. n. 2(E).
177
    Id, §2B5.3(b)(4).
178
    Armstead, 524 F.3d at 445.
179
    Id.
180
    United States v. Karadimos, No. 11-30199 (9th Cir. Sep. 19, 2012).
181
    Id.




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  The calculation of the actual value of the infringing items was appealed in
  United States v.    Lundgren.182      The defendant admitted culpability for
  criminal copyright infringement, in violation of 17 U.S.C. § 506(a)(1)(A)
  and 18 U.S.C. § 2319(a) and (b)(1), in connection with a scheme conceived
  to sell copies of reinstallation discs for Microsoft Windows, without
  permission from the copyright owner.183 The defendant, nevertheless,
  disputed the value of the reinstallation discs, and argued that the district
  court erred in calculating the infringement value by using the actual retail
  price of the infringing product “because the amount offered by the
  government was not for a substantially identical item”,                             as the
  reinstallation discs “were fundamentally different than the discs sold by
  Microsoft to small registered refurbishers because the discs sold by
  Microsoft came with a license, and a reinstallation disc required the user
  to obtain a license from somewhere else”.184                    The opinion of the
  prosecution’s expert, however, held that the software in discussion
  “performed in a manner largely indistinguishable from the genuine
  versions created by Microsoft”.185 While experts identiﬁed differences in
  the functionality in the discs in question, the court of appeals held that
  the district court’s valuation of the infringed item and the determination
  of defendant’s base offense level were correctly determined.186



      4.4. PROSECUTION DATA

  An    important     component        of   copyright      protection         is    criminal
  enforcement.      However, due to a complex set of factors, the effective
  criminal enforcement of copyright faces numerous, complex, and
  evolving challenges.187 The enforcement efforts are notable: in the years
182
    Lundgren, No. 17-12466 (11th Cir.).
183
    See id.
184
    Id.
185
    Id.
186
    See id. (“subject to a 14-level increase under § 2B5.3(b)(1) and § 2B1.1(b)(1)(H)”).
187
    See Eldar Haber, The Criminal Copyright Gap, 18 STAN. TECH. L. REV. 247, 247-88
    (2015) (argues that there is a “gap between legislation and enforcement of criminal
    copyright infringements,” that “enforcement is problematic as the digital environment


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 2018, 2017, and 2016, the number of cases prosecuted for criminal
 copyright infringement, were four, eight, and ten, respectively;188 in the
 ﬁscal years 2017, 2016, and 2015, in the cases prosecuted for copyright
 and trademark infringement, the median infringement amount was
 $266,086, $148,006, and $107,808, respectively.189                         Notwithstanding
 that, copyright infringement remains startlingly high,190 representing a
 very signiﬁcant and growing concern for stakeholders.191
          The in-depth examination of criminal copyright infringement
 cases and reports unveils the massive scope of this phenomenon: billions
 of protected works shared monthly without authorization;192 globally, an
 estimated 100 million Internet Protocol addresses are daily involved in
    possesses many difficulties to enforcement agencies, such as detection, identifying
    suspects, cross-over jurisdictions, overseas operators, and prosecuting juveniles,” and
    discusses potential explanations for this situation); see also Luis Aguiar, Jörg Claussen &
    Christian Peukert, Catch Me if You Can: Effectiveness and Consequences of Online Copyright
    Enforcement, 29 Info. Sys. Res. 656 (2018) (discussing the effectiveness of illegal
    streaming sites shutdown); Motion Picture Association of America, supra note 13, at 2
    (“enforcement efforts are complicated when intermediaries fail to take adequate steps
    to ensure their services are not being used to facilitate copyright infringement”); Jason
    Gull & Tim Flowers, Prosecuting Copyright Infringement Cases and Emerging Issues, 64 U.S.
    ATT’YS’ BULL. 18, 20 (2016); Peter K. Yu, Enforcement, Enforcement, What Enforcement?,
    52 IDEA: J. L. TECH. 239 (2012) (discussing the challenges raised by cross-border and
    jurisdictional aspects and the architecture and capabilities of cyberspace); I. Trotter
    Hardy, Criminal Copyright Infringement, 11 WM. & MARY BILL RTS. J. 305, 313 (2002)
    (“For many individuals using the Internet, for example, the chance of being caught
    for occasionally downloading a copyrighted song, or uploading a copyrighted piece of
    software, is almost zero.”).
188
    In violation of 17 U.S.C. § 506 (2016) and 18 U.S.C. § 2319 (2019 ), see U.S. Intellectual
    Property Enforcement Coordinator, Annual Intellectual Property Report to Congress
    (2019) at 106; see also U.S. Intellectual Property Enforcement Coordinator, Annual
    Intellectual Property Report to Congress (2018) at 91; U.S. Intellectual Property Enforcement
    Coordinator, 2016 U.S. Intellectual Property Enforcement Coordinator Annual Report on
    Intellectual Property Enforcement (2017) at 80.
189
    See U.S. Sentencing Commission, Quick Facts: Copyright and Trademark Infringement
    Offenses (2018); see also U.S. Sentencing Commission, Quick Facts: Copyright and Trademark
    Infringement Offenses (2017); U.S. Sentencing Commission, Quick Facts: Copyright and
    Trademark Infringement Offenses (2016).
190
    See Freddi Mack, Has the Quest to Quelch Piracy Gone Too Far? Government Overreach in
    Forfeiture of Linking Websites, 68 U. MIAMI L. REV. 561, 587 (2014) (“Digital copyright
    infringement is indisputably one of the most widespread crimes in the United States.”).
191
    “A lack of respect for the rule of law or widespread violations of intellectual
    property law will prevent the establishment of a safe and predictable environment
    for businesses and consumers alike,” see generally U.S. Intellectual Property
    Enforcement Coordinator, Annual Report on Intellectual Property Enforcement (2010)
    at 6, https://www.ice.gov/doclib/iprcenter/pdf/ipec-annual-report.pdf.
192
    See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).




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  illegal downloading;193 in the U.S. alone, in 2017, there were about 27.9
  billion visits to piracy websites;194 over 78% of ﬁles on direct download
  cyberlockers and over 83% of ﬁles on streaming cyberlockers infringed
  copyright, resulting in proﬁts of millions of dollars;195 online access to
  illegal channels,196 illegal downloads and streams,197 or ﬁle sharing
  occurs on a massive scale, causing losses of millions of dollars to rightful
  owners.198




          5. CONCLUSION

  This article, in a comprehensive approach, discussed the characteristics
  of the criminal copyright infringement phenomenon and important
193
    See Todd Spangler, Pirate Bay Shutdown Has Had Virtually No Effect on Digital Piracy Levels,
    VARIETY (Dec. 13, 2014), http://variety.com/2014/digital/news/pirate-bay-shutdown-
    has-had-virtually-no-effect-on-digital-piracy-levels-1201378756/ .
194
    See Amy Watson,            Number of visits to media piracy sites worldwide
    in 2018, by country (in billions), Statista (last edited May 27, 2019),
    https://www.statista.com/statistics/786046/media-piracy-site-visits-by-country/.
195
    See NetNames, Behind the Cyberlocker Door: A Report on How Shadowy Cyberlocker Businesses
    (2014) (”The most proﬁtable direct download cyberlocker generated annual proﬁt of
    $15.2m from revenue of $17.6m”); see also Damilola Ibosiola et al., Movie Pirates of the
    Caribbean: Exploring Illegal Streaming Cyberlockers, 2018 TWELFTH INT’L AAAI CONFERENCE
    ON WEB AND SOCIAL MEDIA. (discussing the online video piracy in the context of streaming
    cyberlockers).
196
    See Publishing under threat as demand for illegal content rises over 2018, MUSO (2019),
    https://www.muso.com/magazine/publishing-under-threat-as-demand-for-illegal-
    content-rises-over-2018/ (the publishing sector, for instance: the illegal channels visits
    was estimated to 21.83bn in 2018).
197
    See Game of Thrones Season 7 Pirated over 1 Billion Times,                            MUSO,
    https://www.muso.com/magazine/game-of-thrones-season-7-pirated-over-1-
    billion-times/ (as of September 3, 2017, the Season 7 of the “Game of Thrones” had
    over 1 billion illegal streams and downloads, mostly through by streaming); see also
    Travis Clark, The ‘Game of Thrones’ season 8 premiere was pirated 54 million times
    in 24 hours, vastly outstripping its legal audience, BusinessInsider (Apr. 17, 2019),
    https://www.businessinsider.com/game-of-thrones-premiere-pirated-54-million-
    times-in-24-hours-2019-4 (the premiere of the “Game of Thrones” was pirated 54
    million times in 24 hours).
198
    See Operator of music piracy website sentenced to 3 years in prison RockDizFile.com was
    second-largest online ﬁle sharing website in US, U.S. Immigration and Customs Enforcement
    (Nov. 17, 2015), https://www.ice.gov/news/releases/operator-music-piracy-website-
    sentenced-3-years-prison (the site averaged about 4.5 million monthly visits, resulting
    in losses of more than $10 million per month to the copyright owners). The value of the
    loss is measured according to the retail value of the “infringed item”, see U.S. SENTENCING
    GUIDELINES MANUAL § 2B5.3, cmt. n. 2.


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aspects involved in the prosecution of these cases. The article’s ﬁndings
demonstrate that criminal copyright infringement is a widespread
offense, resulting in major losses for stakeholders every year, negatively
impacting creativity, reducing the investments, the level of dividends and
tax revenues, and raising signiﬁcant cybersecurity and rule of law
concerns. This would be a strong argument for the importance of criminal
enforcement of copyright.      However, taking into consideration the
number of cases brought to courts and the criminal copyright
infringement reports and estimates, it can be concluded that this criminal
phenomenon is signiﬁcantly under-prosecuted.
      The effectiveness of the legal framework is directly linked to the
extent to which it is enforced.       Criminal enforcement has the very
important role to ensure consistent prosecution. This would also act as
deterrent for potential infringers.    Consequently, there is a need to
increase the determination to reduce this criminal phenomenon.
      This requires a complex strategy, comprising several components:
research,   to determine the actual impact of criminal copyright
infringement on the quality and quantity of creative output and on
individual and related industries revenues; the study of approaches used
in other countries, where criminal sanctions are used more commonly, in
order to prioritize the enforcement efforts; the use of cost-beneﬁt
analysis tools, to determine the efficient allocation of resources;
improved tools for copyright infringement reporting, takedown, seizure,
illegal revenue ﬂows blocking, and forfeiture mechanisms; enhanced
international law enforcement and service providers cooperation;
education of consumers and policymakers on the consequences of
criminal copyright infringement and the potential security harms
associated with this phenomenon; technical assistance programs; better
deﬁned responsibility for secondary liability; investigation assistance
from ﬁrms and industry groups; and artiﬁcial intelligence solutions, to
effectively detect and timely address criminal copyright infringements.



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This article focused on one jurisdiction, however, the ﬁndings could be
useful to a large, international audience. This would be particularly the
case with respect to infringements committed in cyberspace.                      The
numerous online copyright infringement cases cited in this article,
potentially rendering the enforcement of rights very difficult or even
impossible, imply that there is a need to better address aspects
concerning cases that span cross-border, through bi- or multi-lateral
Treaties or Partnership Agreements.




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