Part 2: The Government’s Unclear Path to Conviction

Last time, I tried to give some practical perspective to the Megaupload Indictment. It was, at the same time, business as usual and completely extraordinary. I predicted (we’ll see how accurately) that MU will be the only major indictment of its kind in the medium term. I gave two reasons for it. First, indicting MU served its broader purpose of sending a message to other file-sharing sites. Second, the government will probably want to see how well its legal theories do–because, as we’ll discuss this time, the government’s case isn’t as straightforward as many of us (including me) thought it was.

For purposes of post, we’re going to ignore the “easy” parts of the government’s case, i.e., those involving direct copyright infringement, because the lessons there are less applicable. I assume that legitimate file-sharing sites are at least careful enough not to engage in direct copyright infringement (other than, arguably, distribution, which is a vexed issue).

Primary Consideration, Secondary Liability, Uncommon Law

When I (and, I assume, a lot of other people) first heard of the MU Indictment, we figured the government’s case-in-chief would be a slam dunk, and that the only question was MU’s ability to mount a defense based on the DMCA safe harbor. After all, that’s how it works in the civil arena. File-sharing sites are almost certainly committing secondary copyright infringement–both of the vicarious and contributory varieties–but the DMCA safe harbor should usually get them off the hook, if properly complied with. It turns out I was wrong on both counts.

My first questionable assumption was that the government needed only to prove secondary copyright infringement. Now I’m not so sure. The problem is that vicarious and contributory infringement are legal theories made up by judges to effectuate the policies created by the Copyright Act. And in the civil context, that’s OK because civil courts are in the business of vindicating private rights and making victims whole. You shouldn’t be able to get away with causing others to do your dirty work.

But criminal law is different. It’s you versus the state. If you lose, you can serve time in prison, and you’ll have a criminal record for the rest of your life. In addition, the United States has always had a healthy distrust of state powers, and the state’s ability to charge and convict people of crimes has always been viewed as one of the most dangerous and corruptible powers.

At the federal level, there is an additional constitutional concern. The prosecution of crimes is a function of the executive branch. And obviously the judicial branch actually handles the proceedings. But where is the legislative branch’s check on these powers? The answer is: in the passing and revoking of criminal laws.

Taken together, the maxim has arisen that criminal law is purely statutory in nature. I.e., you can be criminally charged and convicted only of statutes specifically passed as such by a legislative body. A civil law is not automatically a criminal law, and old common-law crimes are no longer actionable, unless and until a legislative body says so.

At the federal level, this is the holding of a very old supreme court decision, United States v. Hudson, 11 U.S. 32 (1812): “The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.” [sic]. The question before the court was the criminal actionability of common-law crimes, but the reasoning applies with equal force to civil claims.

What this all means is that there can’t be criminal liability for civil secondary copyright liability. So the question becomes: is there some other way for the government to bring charges against secondary copyright infringers? And there are a few possibilities.

Aiding and Abetting?

First, the government may accuse MU of aiding and abetting criminal copyright infringement by others. Although it arose under common law, it is now codified as statutory law. Under the federal version, those found guilty of aiding and abetting are held to be just as guilty as the one who committed the crime. Some classic examples of aiding and abetting include driving the getaway car, or even driving the perpetrator to the bank and just dropping him off. Cashing a fraudulent check could be aiding and abetting check or wire fraud.

As you can tell from these examples, the key is knowledge: you have to know that what you’re doing is helping a criminal act. If your buddy just asked you for a ride to the bank (and he wasn’t wearing a ski mask and brandishing a pistol), you wouldn’t be aiding and abetting the bank robbery. Here’s how one court instructed a jury on the concept of aiding and abetting, in a criminal copyright case:

In order to aid and abet another to commit a crime, it is necessary that a defendant wilfully associate himself in some way with the criminal venture, that he willfully participate in it as in something that he wishes to bring about, and that he wilfully seek by some action of his to make it succeed. Thus … if you find that the defendant wilfully associated himself with others who were reprinting or publishing the allegedly infringing music books, and that he wilfully participated in their venture … through acts of his own calculated to make their venture succeed, even though he did not do the actual reproduction himself, then you may find that the defendant was an aider and abettor.

United States v. Rose, 149 U.S.P.Q. 820 (S.D.N.Y. 1966) (sorry no public link for this one).

The statutory definition of aiding and abetting is actually quite broad:

  1. Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
  2. Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S.C. § 2.

Notice how the statute isn’t limited to aiding and abetting, but includes counseling, commanding, inducing and procuring. Inducing appears especially ripe because inducement is a flavor of contributory copyright liability, so perhaps the civil law on inducement (i.e., the Grokster case) could be imported into criminal law this way?

But the government isn’t using the aiding-and-abetting statute to emulate secondary liability for the bulk of the alleged copyright infringement. The government is using the aiding-and-abetting statute for straightforward things certain violations of the distribution right (which we’ll talk about next), but not to expand the reach of criminal copyright liability. Why is that?

I think the reason is that there is a fundamental difference between criminal aiding & abetting and civil secondary liability. It has to do with who knows how much and when. With civil secondary liability, you only have to prove the alleged secondary infringer (we’ll call her “Y”) knew that her actions would contribute to direct copyright infringement by another* (we’ll call him “X”). Thus, you only need to prove knowledge on Y’s part. With aiding-and-abetting, you need to prove the commission of the underlying crime, which has a “willfulness” requirement, and the commission of the secondary crime (aiding and abetting), which also has a willfulness requirement. Thus, you need to prove that X acted willfully in infringing copyright, and that Y acted willfully in aiding and abetting that infringement.

* Vicarious liability doesn’t have a knowledge requirement, but it also doesn’t seem to fit within the aiding-and-abetting framework.

Now think about how file-sharing sites work. How easy is it going to be to prove that, say, a user willfully infringed over $1000 worth of files in a given 180-day period, or for profit? And, really, if it’s just one such user, was this case really worth bringing? It’s do-able, but it would be like prosecuting 100s of little copyright cases–which is exactly what secondary liability was supposed to avoid (by going after the conduit rather the direct perpetrators).

The government did bring a claim for conspiracy to commit copyright infringement, but that doesn’t solve the problem. Conspiracy claims are useful when a single crime has been committed, but different people committed different parts of it. That’s certainly handy here, but it still begs the question: what is the underlying crime that is the subject of the conspiracy?

Is Criminal Distribution Broader than Civil Distribution?

A more fruitful direction, I think–and one that the government actually does take–is to focus on electronic distribution. There may be a very significant difference between the crime of copyright infringement by electronic distribution, which is governed by Section 506(a)(1)(B)*:

Any person who willfully infringes a copyright shall be punished … if the infringement was committed … 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 $1000.

* There’s also a close cousin at Section 506(a)(1)(c), which prohibits even (willfully) making available on a computer network of a work that was going to be legally distributed to the public but hadn’t yet. MU has been charged with violation of this statute, too. It is, as far as I know, the only instance where merely making a computer file publicly available can lead to copyright liability.

Recall that, in the civil context, I claimed (somewhat controversially) that the civil distribution right might be limited to the distribution of physical copies, and that electronic distribution may not constitute “distribution” in the civil context. But that doesn’t appear to be a problem here because the statute specifically mentioned “electronic means” (though it still talks in terms of distributing “copies or phonorecords,” which are by definition physical items).

MU would seem to be both distributing works, as defined by Section 506(a)(1)(B). It’s just a matter of proving that over $1000 worth of works were electronically distributed in a given 180-day period. Right?

Maybe not, if the “phonorecord problem” is for real (and not everyone agrees, obviously). We appear to be using Section 506(a)(1)(B) to expand the scope of civil copyright liability. But that’s not how the criminal copyright statute is written. The way it’s set out, the government has to prove (1) willfulness, (2) copyright infringement (i.e., traditional civil infringement), and (3) one of three special conditions, which includes Section 506(a)(1)(B). That sounds like Section 506(a)(1)(B) is a limiting factor, not an expansive one. Thus, if the government can’t prove regular old civil (but direct) copyright infringement, it can’t prove criminal copyright infringement, regardless of Section 506(a)(1)(B)’s language. If electronic distribution isn’t a violation of the civil distribution right, the addition of “including by electronic means” doesn’t, in fact, add anything.

Is there any principle under which we can say that Congress, in including “electronic means” Section 506(a)(1)(B), somehow retroactively expanded Section 106(3), at least for criminal purposes? As I’ve argued before, a later Congress’ assumption about the meaning of a pre-existing statute should have no bearing on that statute’s actual meaning. What matters is the intent of the Congress that actually passed the statute at the time. But this might be a slightly different situation because it’s limited to just one form of infringement, i.e., criminal infringement. Thus, rather than basically “ret-conning” Section 106(3) with Section 506(a)(1)(B)*, Congress was just expanding the scope of criminal copyright infringement, in a way that couldn’t be ignored.

* I.e., Section 506(a)(1)(B) wouldn’t be expanding the scope of Section 106(3) in all situations, just in situations in which Section 506(a)(1)(B) applies.

Final Thought

In conclusion, I think the government has a puncher’s chance at making a prima facie case against MU for criminal copyright infringement. Can you think of another way to fold secondary liability into criminal liability, or another legal theory the government is making and/or is overlooking?

Next time, we’ll look at whether and to what extent the DMCA safe harbors can serve as a defense to the government’s charges of criminal copyright infringement.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.