The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. But what pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?
This article answers these questions and suggests guidelines for prosecutorial discretion. After a condensed history of criminal copyright law, we explain why "secondary" theories of infringement apply in the criminal, as well as civil, context and why the DMCA "safe harbor" defense is a red herring in criminal copyright actions. We then propose guidelines for prosecutors to consider before bringing a criminal enforcement action against filesharing services: Limiting prosecutions to theories of liability already established in civil case law, and targeting only those filesharing-service operators that openly defy civil enforcement actions.
- copyright law,
- criminal law,
- criminal copyright
Available at: http://works.bepress.com/benton_martin/14/