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There are quite a few laws in the USA (mostly at the Federal level) governing copyright and how to handle infringement. Most of these laws seem to establish criminal and/or civil liability for the act of copying rather than simple possession.

So, my question is, if I have already come into possession of a tangible/physical item that violates copyright (e.g. a pirated video game cartridge, DVD, video tape, etc.), is there any law that creates civil or criminal liability for continuing to possess it? To be clear, I'm asking about bare possession, like keeping the item on my desk or something as a curiosity, rather than copying it further, importing it, exporting it, selling it, lending it, commercially exploiting it as part of a business venture, using it to assault a police officer, etc.

As an analogy, most "illegal" drugs are illegal to simply possess. If I have some heroin in my desk drawer, that is illegal in itself even if I refrain from selling it to someone, shipping it across a border, etc. Is a copyright-infringing item similar to that or does the law only get involved when something else (e.g. further copying, sale, etc.) is done?

Yes, it's possible that a law was broken in the acquisition of an infringing item. For the purposes of this question, that is irrelevant.

In response to Nate Eldredge's comment, yes I am asking solely about bare possession. Maybe I plan to "play" or "load up" an infringing video game cartridge at some point in the indeterminate future, but what I care about now is whether I can be "busted" in the meantime just for having it or if a cause of action only arises when I play it.

Of course, I am asking this as a hypothetical, and am interested in the theory of this rather than advice for any specific case or scenario. The problem I am having researching this is that a lot of actual court cases that seemingly involve possession of infringing items are actually about using or selling them. For example, physical shops selling pirated DVD's (which were actually a real thing 20 years ago) would occasionally get "busted" for selling the products or attempting to import them from whatever country it was that stamped them out by the dozen, not for simply having them on an upper shelf in the storeroom.

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    So in particular, you do not intend to play your hypothetical pirated video game? Because AFAIK that may be considered copying (parts of the code or data are copied into RAM for execution). Nov 3, 2021 at 15:53
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    Since 1978, all US laws on copyright are at the Federal level. 17 USC 301 says: "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title ... no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State." Nov 3, 2021 at 17:25
  • Anecdotally, Border Patrol (Customs) can confiscate the material e.g. at an airport. But that may not be what you are asking about .
    – crasic
    Nov 4, 2021 at 15:28
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    @crasic no, if Customs are seizing it then I must have been importing it so it's outside of my question. I'm more talking about a scenario where cops have a warrant to search my house for meth but find pirated DVD's in my attic gathering dust. Nov 4, 2021 at 19:11
  • @NateEldredge For the purpose of copyright law, technical automatic copies that get made to transient storage such as RAM or a browser cache, do not count as copyright infringement. I'm pretty sure there is another answer on the Site that treats this case. See law.stackexchange.com/questions/21790/…
    – Brandin
    Nov 18, 2021 at 9:51

3 Answers 3

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No, bare possession is not illegal under US law

Nothing in Tile 17 of the US code (which is the copyright law) makes it illegal or even actionable to simply posses a single physical object (such as a game or a book) which constitutes a copyright infringement.

Criminal copyright infringement is defined in 17 USC 506 and is limited to people who:

  • Infringe for "purposes of commercial advantage or private financial gain"; and
  • Create infringing copies "which have a total retail value of more than $1,000" in a six-month period; or
  • Infringe "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."

However, in practice, the US Department of Justice only brings criminal copyright cases when infringement is carried on as a business, on a bulk or mass basis, and only when infringing copies are in fact distributed to the public.

In practice the vast majority of copyright enforcement (both in the US and in other countries) is done by private suits by copyright owners or rights-holders. In the US such suits are generally to enforce the rights guaranteed in 17 USC 106. This protects six core rights (summarized):

  • To make copies or phonorecords;
  • To prepare derivative works;
  • To distribute copies or phonorecords;
  • To perform the copyrighted work publicly;
  • To display the copyrighted work publicly;
  • To perform the copyrighted work publicly by means of a digital audio transmission.

The copyright owner can do any of these or authorize other to do them. Anyone doing any of these without such permission is an infringer unless one of the exceptions or limitations in sections 107 thru 122 applies.

There are also the "moral rights" specified in section 106A. These apply only to works of visual art in the US, and grant the artist the right to:

  • Claim authorship of the work;
  • Prevent the use of the person's name on any work s/he did not create;
  • Prevent the use of the author's name on any work that has been changed so as to possibly harm the author's reputation;
  • Prevent any "intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation"; and
  • Prevent any destruction of a work of recognized stature.

Note that none of the six rights from sec 106 or the five moral rights from sec 106A covers possession of an infringing copy.

One caution: so-called "first-sale rights" (from 17 USC 109) do not apply to an infringing copy, and it is infringement to knowingly sell, lend, rent or otherwise distribute an infringing copy. But the purchaser is not an infringer.

Also, to play an infringing copy of a game might be a violation of the right to "publicly perform" the work, but not if done in private. However, in running a game it is likely that one or more temporary copies would be made. This is lawful if done from a lawful copy, but not if the person does not posses a lawfully-made copy. So playing an infringing copy of a game might well constitute an act of infringement, although a suit over a private act is unlikely.

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    Excellent and through answer!
    – ohwilleke
    Nov 3, 2021 at 17:26
  • It’s outside the literal scope of the question, but it might be worth mentioning that there could be private consequences to possessing copies that were not made legally. It might violate an acceptable use policy of a service provider, or the terms of an overall license agreement with an IP creator. Such entities may deny service or future sale of goods if they become aware of possession of unlicensed IP. Nov 4, 2021 at 1:01
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    @Kevin I suspect they're not really fair use, but the copyright holders would subject themselves to a PR nightmare if they tried to take them down, while they get free publicity from them. The only gain they might get from stopping them is if they intended to create a competing platform for public performances.
    – Barmar
    Nov 4, 2021 at 15:49
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    @Barmar: I agree, but operating a video hosting site is so hideously expensive that it can't possibly be worth it for this use case. Nintendo did try to run a "creators program" through YouTube for a while, but everyone hated it and they eventually had to can it.
    – Kevin
    Nov 4, 2021 at 17:04
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    @Kevin True, but that doesn't stop some companies from dreaming that they can do it successfully.
    – Barmar
    Nov 4, 2021 at 17:08
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With the "I am not a lawyer disclaimer[1]":

Most copyright violations are civil violations, especially mere possession. Making a copy of a copyrighted book for your own purposes would also usually fall into this "civil" category. Law enforcement agencies only attempt to prosecute flagrant violations (usually distribution), i.e. copyright violations that rise to the standard for criminal violations.

So, for lesser violations, the copyright holder could sue you in civil court, and therein lies much gray area.

What I always ask myself is not whether or not I might be sued, rather, "What would the jury say?"

There are "fair use" provisions in the law that are used in weighing the pros and cons while considering how much harm was caused to the copyright holder. I suggest researching those provisions. I think you'll see you're okay. If you're still unsure, please consult a lawyer!

See: https://copyrightalliance.org/faqs/what-is-fair-use/

And: https://www.copyright.gov/fair-use/more-info.html

[1] I was a law school web developer for 10 years, and had way too many opportunities to remind the law professors about copyright law.

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  • "what would the judge/jury say" is the secret to my success. The person on the other table from me rarely thinks about that (or we wouldn't be in court). Nov 5, 2021 at 4:35
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Largely copyright is what it says, the right to copy something. The act of copying is what's being regulated. Any other restrictions the producers may argue the software has are usually piggybacked onto the fact that they won't let you copy it unless you agree to those restrictions.

Typically software publishers will argue that a game that copies itself off of your hard disk into RAM in order to run is also the computer operator making a copy, so (the argument goes) you can't legally run the game without their license (complete with their license's restrictions), and doing so anyway is committing a new copyright violation.

Of course the physical possession of an illegally copied work is pretty compelling evidence that somebody broke the law, and the owner of the disk is naturally going to be considered the most likely suspect.

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  • If the copying is a programmed, essential step in the operation of a machine (such as copying parts of a cartridge to RAM), that 'copy' does not count as copyright infringement. See law.stackexchange.com/questions/21790/…
    – Brandin
    Nov 18, 2021 at 9:54
  • @Brandin - I suggest rereading the top answer on that question, starting with the part headed "Digital Content". It says pretty much exactly what the second paragraph of this answer says. (Or at least what it was trying to say. I clearly can't claim to be a perfect communicator)
    – T.E.D.
    Nov 18, 2021 at 15:57

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