Once the validity of the copyright has been established, the government must then prove that the defendant infringed upon that right. Although, the term "infringement" is not defined in the copyright statute, 17 U.S.C. § 501(a) 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 an infringer of the copyright." Thus, the concept of infringement is defined by reference to the exclusive rights conferred on a copyright owner by 17 U.S.C. § 106. Those exclusive rights include the right to display or perform the work publicly, 17 U.S.C. § 106(4)-(5), along with the right to reproduce and 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 and will give rise at least to a civil infringement claim by the copyright holder.
Generally, infringement is established by evidence of copying. See Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977). However, because copying often cannot be directly attributed to the defendant, copying can be established indirectly, through evidence that 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. 1981).
With regard to infringement of copyrighted computer programs, a court must also determine whether or not the copies at issue were lawfully made. This determination is necessary because 17 U.S.C. § 117 allows certain copies to be legally made. Thus, unlike copies of other types of copyrighted works, copies of computer programs are not automatically presumed to be unauthorized.
The concept of infringement includes a host of statutory exceptions to the exclusive rights created by copyright, many of which involve conduct which is already specifically exempted from criminal liability by the heightened proof requirements of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. Other limitations, such as the "fair use" doctrine, while theoretically applicable to some complex criminal cases, have little practical impact on the government's burden of proof in the vast majority of cases. For an extended discussion of these exceptions and possible defenses, see the Computer Crime and Intellectual Property Section's Intellectual Property Rights Prosecution Manual.
In practice, only one of these limitations on statutory copyrights may create problems for criminal law enforcement. That limitation is the first sale doctrine, codified in 17 U.S.C. § 109. That doctrine, and its impact on criminal copyright infringement prosecutions, are discussed in this Manual at 1854.
[cited in JM 9-71.001]