Has anyone been imprisoned for noncommercial copyright infringement under US law?

Question

Has anyone who was not making money on copyright infringement been imprisoned for copyright infringement under US law?

Answer 1

Criminal copyright infringement is defined by 17 U.S. Code § 506 and by 18 U.S.C. § 2319. The latter section simply sets penalties, the provisions of 17 USC 506(a)(1) define the offense. It requires "willful infringement" for any offense.

There are three sub-paragraphs which define forms of criminal copyright infringement. 17 USC 506(a)(1)(A) makes criminal any wilful infringement "for purposes of commercial advantage or private financial gain". This need not mean that the infringer made an actual profit, merely that s/he hoped to do so. In United.States v. Cross, 816 F.2d 297 (1987), the US Seventh Circuit Court of Appeals wrote:

A conviction under 17 U.S.C. § 506(a) does not require that a defendant actually realize either a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of financial gain or benefit. of financial gain or benefit.

17 USC 506(a)(1)(B) makes criminal any wilful infringement:

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

17 USC 506(a)(1)(C) makes criminal any wilful infringement:

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.

So 17 USC 506(a)(1)(B) would apply to a person who made copies, even at no charge, of works with sufficient retail value, and 17 USC 506(a)(1)(C) would apply to someone who "leaked" a manuscript that was being prepared for commercial publication to the internet or another public computer network. Either of these could be charged when a person had not made any money on the infringement, nor attempted to make any. They were both added to the law in 1997. by the "No Electronic Theft Act", in response to the case of Brian LaMacchia, who created an online service for exchanging unauthorized copies of commercial computer programs. Because he made no charge, the case against him was dismissed by the trial court. See United States v. LaMacchia, 871 F. Supp. 535 (1994).

I have not found any reported cases where there was a criminal conviction for a person who made no charges for infringing copies or acts. But most such cases are not reported in sources accessible to ordinary, free-of-charge search engines.

Prof. James Gibson, University of Richmond School of Law writes in "Will You Go to Jail for Copyright Infringement?":

But will an infringer actually go to jail for copyright infringement? Highly unlikely. While the percentage increase in convictions is significant, the absolute numbers are small. ..., there were fewer than two hundred criminal intellectual property convictions in 2010 (and some of those were trademark cases). In comparison, 1,984 civil copyright infringement lawsuits were filed in the same time period. A copyright infringer’s chances of being sued for damages or an injunction are therefore much greater than his or her chances of being charged criminally.

Moreover, both criminal convictions and civil suits have been decreasing in number. Convictions peaked at 224 in 2007, and civil cases reached their high of 5,488 in 2006. ...

Indeed, the main takeaway from these figures is that the chances that a copyright infringer will suffer any legal consequence – criminal or civil – are vanishingly small. (citations omitted)

Trotter Hardy, Professor of Law and Associate Dean of Technology, College of William & Mary School of Law, in the December 2002 article Criminal Copyright Infringement in the William & Mary Bill of Rights Journal finds criminal copyright cases increasing from 22/year to 207/year over the period from 1980 to 2002, but none of the cases cited in that article other than the LaMacchia case seem to have been of a person who did not attemtp to make a profit on the alleged infringement.

In short, the law, makes this very possible, but I have not found any evidence that it actually happens.

I should mention that violation of the anti-circumvention provisions of the DMCA (17 U.S. Code § 1201 (subsections (a)(1)(A), (a)(2)(A), (a)(2)(B), (a)(2)(C), (b)(1)(A), (b)(1)(B), and (b)(1)(C)) is a crime, but none of these offenses are infringements of copyright.