Copyright InfringementSecond Element --
Once the validity of the copyright has been established, the government
must then prove that the defendant infringed upon that right. Although, the
"infringement" is not defined in the copyright statute, 17 U.S.C. §
provides that: "[a]nyone who violates any of the exclusive rights of the
copyright owner as provided by [17 U.S.C. §§ 106 to 118] . . . is
infringer of the copyright." Thus, the concept of infringement is defined
reference to the exclusive rights conferred on a copyright owner by 17
§ 106. Those exclusive rights include the right to display or perform
work publicly, 17 U.S.C. § 106(4)-(5), along with the right to
distribute copies of the work. 17 U.S.C. § 106(1),(3). Therefore, any
unauthorized exercise of these rights will constitute an act of infringement
will give rise at least to a civil infringement claim by the copyright
Generally, infringement is established by evidence of copying.
Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157,
(9th Cir. 1977). However, because copying often cannot be directly
to the defendant, copying can be established indirectly, through evidence
the defendant had access to the original copyrighted work, and that the
defendant's work is substantially similar to it. See, e.g., Kamar
Intern. Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1062 (9th Cir.
With regard to infringement of copyrighted computer programs, a court
also determine whether or not the copies at issue were lawfully made. This
determination is necessary because 17 U.S.C. § 117 allows certain
be legally made. Thus, unlike copies of other types of copyrighted works,
of computer programs are not automatically presumed to be unauthorized.
The concept of infringement includes a host of statutory exceptions to
exclusive rights created by copyright, many of which involve conduct which
already specifically exempted from criminal liability by the heightened
requirements of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319.
limitations, such as the "fair use" doctrine, while theoretically applicable
some complex criminal cases, have little practical impact on the
burden of proof in the vast majority of cases. For an extended discussion
these exceptions and possible defenses, see the Computer Crime and
Intellectual Property Section's Intellectual Property Rights Prosecution
In practice, only one of these limitations on statutory copyrights may
create problems for criminal law enforcement. That limitation is the first
doctrine, codified in 17 U.S.C. § 109. That doctrine, and its impact
criminal copyright infringement prosecutions, are discussed in this Manual at 1854.
[cited in USAM 9-71.001]