Is simple possession of a copyright-infringing item legal in the USA?

Question

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.

Answer 1

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.

Answer 2

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.

Answer 3

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.