Software Piracy and Internet Pirates Going to Prison

Software piracy gave a sharp awakening to copyright infringement counsels around the world. Software piracy law efforts backed by the SIIA (Software and Information Industry Association), the RIAA (Recording Industry Association of America), the Business Software Association (BSA) and of course Microsoft, are running fast and furious to intimidate internet pirates and quash any and all efforts of internet piracy, software piracy and copyright infringement on software, music and film. Efforts at suppressing internet piracy, copyright infringement and software piracy are running full speed ahead.

Illegal copyright infringement and software piracy can result in civil or criminal trials. Prior to 1978, copyright infringement could be subject to state or federal laws. However, in 1976, Congress codified Section 17 of the United States Code to limit copyright infringement to the federal courts effective January 1, 1978 – essentially dissolving the power of the states to prosecute cases of copyright infringement – the legal claim for software piracy and internet piracy. Sentencing for federal crimes have been historically more punitive than that for state crimes and have been under legislative and judicial scrutiny for decades.

The Sentencing Reform Act of 1984 led to Federal Sentencing Guidelines that were enacted in 1987 – presumably to develop consistency in sentencing. In 2004 the Federal Sentencing Guidelines were struck down by the Supreme Court. The Supreme Court decided the federal guidelines were advisory, but not mandatory. Hence, anyone subject to federal sentencing for copyright infringement, software piracy or internet piracy could receive a substantially higher sentence than the federal guidelines suggest – and presumably lower. But apparently “advisory” is still mandated. In the USA vs. Kononchuck software piracy case which involved pirated Microsoft software, the original sentencing judge was lenient and sentenced one of the defendants to only probation and house arrest. The prosecutor appealed the light sentence, and the case was brought back to court for new, harsher, sentencing. These types of decisions surely contribute to the 2.3 million people that are imprisoned today – up from 1.1 million in 1990. Pew Research reports 1 in every 100 adults in America is in prison.

The US Sentencing Guidelines Manual (U.S.S.G.) lists the mitigating factors that are taken into consideration for internet piracy, software piracy and copyright infringement in Section 2B5.3. Because copyright infringement is an economic offense, the retail cost of the software pirated and the number of items pirated determine the severity of the crime. The Courts use a “base” crime level, and adjust the sentencing accordingly with the elements of the case. Copyright Infringement starts off at “level 8,” and only one count of a value under $2000 could bring a sentence anywhere from 0 to 6 years (as determined in the 2007 Federal Sentencing Guidelines Chapter Five Part A Sentencing Table). With just one or two “marks” against a defendant, the minimum jail times goes up to 4 years. “Uploading” is 2 points – and increases the sentence to 4-10 years.

Software piracy, internet piracy and copyright infringement prison terms are still undergoing scrutiny during the appeals process. Despite strict sentencing in copyright infringement, Internet piracy is far from being quashed. MarketingVox has reported a 3% increase in illegal music downloads over the last couple years, even as prison for piracy escalates. Copyright infringement litigation will be tossed and turned in the courts with unexpected prison sentences and damage awards until the district courts develop consistent sentencing precedents based on the motivations of the piracy and severity of the crimes that adhere to the constitutional principals. Until Congress, the Courts and the Constitution speak the same language, Internet pirates are likely to be facing some federal jail time in the years to come.