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Copyright Infringement—Third Element -- Willfulness

To establish criminal intent, the government must prove that the defendant willfully infringed a holder's copyright. See 17 U.S.C. §  506(a). Courts are in general agreement that a willful act must be "an act intentionally done in violation of the law." United States v. Wise, 550 F.2d 1180, 1194 (9th Cir.), cert. denied, 434 U.S. 929 (1977). But when defining willfulness, courts have differed in their interpretation of which of the two acts --copying or infringing -- requires willful intent. The minority view, endorsed by the Second and Ninth Circuits, holds that "willful" means only intent to copy, not intent to infringe.The majority view, however, looks for an intent to infringe rather than intent to copy, thus, requiring the government to demonstrate a "voluntary, intentional violation of a known legal duty." United States v. Moran, 757 F. Supp. 1046, 1049 (D. Neb. 1991). This construction provides a rare but significant exception to the maxim that "ignorance of the law is no excuse." Indeed, under this construction, were a defendant to satisfy the finder of fact either that he was not aware of laws prohibiting copyright infringement, or that he did not believe his acts to be infringing, such might constitute a defense to the criminal charge. Such would not constitute a defense to civil infringement, however, as civil infringement remains a strict liability tort. It is, thus, crucial in criminal cases to amass evidence of intent in order to anticipate and rebut this and similar "lack of intent" defenses. NOTE: For a more detailed discussion of the applicable law and advice on collecting evidence bearing on this element, consult the Computer Crime and Intellectual Property Section's Intellectual Property Rights Prosecution Manual. [cited in USAM 9-71.001]