/* BBS LEGAL GUIDE COMMENTARY: Here's the Chapter of the

copyright code that defines the scope of infringement of

copyright, and the remedies that a copyright owner has if the

copyright is infringed */

CHAPTER 5. COPYRIGHT INFRINGEMENT AND REMEDIES

Section

501. Infringement of copyright

502. Remedies for infringement: Injunctions

503. Remedies for infringement: Impounding and disposition of

infringing articles

504. Remedies for infringement: Damages and profits

505. Remedies for infringement: Costs and attorney's fees

506. Criminal offenses

507. Limitations on actions

508. Notification of filing and determination of actions

509. Seizure and forfeiture

510. Remedies for alteration of programing by cable systems

________________

S 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the

copyright owner as provided by sections 106 through 118 [17 USC

SS 106-118], or who imports copies or phonorecords into the

United States in violation of section 602 [17 USC S 602], is an

infringer of the copyright.

(b) The legal or beneficial owner of an exclusive right under a

copyright is entitled, subject to the requirements of section

205(d) and 411 [17 USC SS 205(d) and 411], to institute an action

for any infringement of that particular right committed while he

or she is the owner of it. The court may require such owner to

serve written notice of the action with a copy of the complaint

upon any person shown, by the records of the Copyright Office or

otherwise, to have or claim an interest in the copyright, and

shall require that such notice be served upon any person whose

interest is likely to be affected by a decision in the case. The

court may require the joinder, and shall permit the intervention,

of any person having or claiming an interest in the copyright.

(c) For any secondary transmission by a cable system that

embodies a performance or a display of a work which is actionable

as an act of infringement under subsection (c) of section 111 [17

USC S 111(c)], a television broadcast station holding a copyright

or other license to transmit or perform the same version of

that work shall, for purposes of subsection (b) of this section,

be treated as a legal or beneficial owner if such secondary

transmission occurs within the local service area of that

television station.

(d) For any secondary transmission by a cable system that is

actionable as an act of infringement pursuant to section

111(c)(3) [17 USC S 111(c)(3)], the following shall also have

standing to sue: (i) the primary transmitter whose transmission

has been altered by the cable system; and (ii) any broadcast

station within whose local service area the secondary

transmission occurs.

S 502. Remedies for infringement: Injunctions

(a) Any court having jurisdiction of a civil action arising under

this title [17 USC SS et seq.] may, subject to the provisions of

section 1498 of title 28 [28 USC S 1498], grant temporary and

final injunctions on such terms as it may deem reasonable to

prevent or restrain infringement of a copyright.

(b) Any such injunction may be served anywhere in the United

States on the person enjoined; it shall be operative throughout

the United States and shall be enforceable, by proceedings in

contempt or otherwise, by any United States court having

jurisdiction of that person. The clerk of the court granting the

injunction shall, when requested by any other court in which

enforcement of the injunction is sought, transmit promptly to the

other court a certified copy of all the papers in the case on

file in such clerk's office.

S 503. Remedies for infringement: Impounding and disposition of

infringing articles

(a) At any time while an action under this title [17 USC SS 101

et seq.] is pending, the court may order the impounding, on such

terms as it may deem reasonable, of all copies or phonorecords

claimed to have been made or used in violation of the copyright

owner's exclusive rights, and of all plates, molds, matrices,

masters, tapes, film negatives, or other articles by means of

which such copies or phonorecords may be reproduced.

/* You have probably heard of seizures of BBS equipment due to

allegations ((or proof)) of distribution of commercial software.

This section is the civil counterpart of seizure. */

(b) As part of a final judgment or decree, the court may order

the destruction or other reasonable disposition of all copies or

phonorecords found to have been made or used in violation of the

copyright owner's exclusive rights, and of all plates, molds,

matrices, masters, tapes, film negatives, or other articles by

means of which such copies or phonorecords may be reproduced.

S 504. Remedies for infringement: Damages and profits

(a) In general. Except as otherwise provided by this title [17

USC SS 101 et seq.], an infringer of copyright is liable for

either --

(1) the copyright owner's actual damages and any additional

profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual damages and profits. The copyright owner is entitled

to recover the actual damages suffered by him or her as a result

of the infringement, and any profits of the infringer that are

attributable to the infringement and are not taken into account

in computing the actual damages. In establishing the infringer's

profits, the copyright owner is required to present proof only of

the infringer's gross revenue, and the infringer is required to

prove his or her deductible expenses and the elements of profit

attributable to factors other than the copyrighted work.

(c) Statutory damages. (1) Except as provided by clause (2) of

this subsection, the copyright owner may elect, at any time

before final judgment is rendered, to recover, instead of actual

damages and profits, an award of statutory damages for all

infringements involved in the action, with respect to any one

work, for which any one infringer is liable individually, or for

which any two or more infringers are liable jointly and

severally, in a sum of not less than $250 or more than $10,000 as

the court considers just. For the purposes of this subsection,

all the parts of the compilation or derivative work constitute

one work.

(2) In a case where the copyright owner sustains the burden of

proving, and the court finds, that infringement was committed

willfully, the court in its discretion may increase the award of

statutory damages to a sum of not more than $50,000. In a case

where the infringer sustains the burden of proving, and the court

finds, that such infringer was not aware and had no reason to

believe that his or her acts constituted an infringement of

copyright, the court in its discretion may reduce the award of

statutory damages to a sum of not less than $100. The court shall

remit statutory damages in any case where an infringer believed

and had reasonable grounds for believing that his or her use of

the copyrighted work was fair use under section 107 [17 USC S

107], if the infringer was: (i) an employee or agent of a

nonprofit educational institution, library, or archives acting

within the scope of his or her employment who, or such

institution, library, or archives itself, which infringed by

reproducing the work in copies or phonorecords; or (ii) a public

broadcasting entity which or a person who, as a regular part of

the nonprofit activities of a public broadcasting entity (as

defined in subsection (g) of section 118 [17 USC S 118(g)]

infringed by performing a published nondramatic literary work or

by reproducing a transmission program embodying a performance of

such a work.

/* The library community is very active in the drafting of the

copyright code. For very good reason, libraries want significant

protection for their employees. Therefore, if there is a

copyright item there is a very limited exception for employees of

the non-profit entity. However, this can not be relied upon to

permit the posting of anything which is not distributable. Can a

BBS be a non-profit archive? If the BBS is in fact non-profit,

then it can. However, this defense will not apply to a claim of

infringment UNLESS the software is distributable. */

S 505. Remedies for infringement: Costs and attorney's fees

In any civil action under this title [17 USC SS et seq.], the

court in its discretion may allow the recovery of full costs by

or against any party other than the United States or an officer

thereof. Except as otherwise provided by this title [17 USC SS

101 et seq.], the court may also award a reasonable attorney's

fee to the prevailing party as part of the costs.

S 506. Criminal offenses

(a) Criminal infringement. Any person who infringes a copyright

willfully and for purposes of commercial advantage or private

financial gain shall be fined not more than $10,000 or imprisoned

for not more than one year, or both: Provided, however, That any

person who infringes willfully and for purposes of commercial

advantage or private financial gain the copyright in a sound

recording afforded by subsections (1), (2), or (3) of section 106

[17 USC S 106 (1), (2), or (3)], or the copyright in a motion

picture afforded by subsections (1), (3), or (4) of section 106

[17 USC S 106(1), (3) or (4)] shall be fined not more than

$25,000 or imprisoned for not more than one year, or both, for

the first such offense and shall be fined not more than $50,000

for imprisoned for not more than two years, or both, for any

subsequent offense.

(b) Forfeiture and destruction. When any person is convicted of

any violation of subsection (a), the court in its judgment of

conviction shall, in addition to the penalty therein prescribed,

order the forfeiture and destruction or other disposition of all

infringing copies or phonorecords and all implements, devices or

equipment used in the manufacture of such infringing copies or

phonorecords.

(c) Fraudulent copyright notice. Any person who, with fraudulent

intent, places on any article a notice of copyright or words of

the same purport that such person knows to be false, or who, with

fraudulent intent, publicly distributes or imports for public

distribution any article bearing such notice or words that such

person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent removal of copyright notice. Any person who, with

fraudulent intent, removes or alters any notice of copyright

appearing on a copy of a copyrighted work shall be fined not more

than $2,500.

/* Under copyright law if someone removes a copyright notice

(e) False representation. Any person who knowingly makes a false

representation of a material fact in the application for copy-

right registration provided for by section 409 [17 USC S 409],

èor in any written statement filed in connection with the applica-

tion, shall be fined not more than $2,500.

S 507. Limitations on actions

(a) Criminal proceedings. No criminal proceeding shall be main-

tained under the provisions of this title [17 USC SS 101 et

seq.] unless it is commenced within three years after the cause

of action arose.

(b) Civil actions. No civil action shall be maintained under the

provisions of this title [17 USC SS 101 et seq.] unless it is

commenced within three years after the claim accrued.

S 508. Notification of filing and determination of actions

(a) Within one month after the filing of any action under this

title [17 USC SS 101 et seq.], the clerks of the courts of the

United States shall send written notification to the Register of

Copyrights setting forth, as far as is shown by the papers filed

in the court, the names and addresses of the parties and the

title, author, and registration number of each work involved in

the action. If any other copyrighted work is later included in

the action by amendment, answer, or other pleading, the clerk

shall also send a notification concerning it to the Register

within one month after the pleading is filed.

(b) Within one month after any final order or judgment is issued

in the case, the clerk of the court shall notify the Register of

it, sending with the notification a copy of the order or judgment

together with the written opinion, if any, of the court.

(c) Upon receiving the notifications specified in this section,

the Register shall make them a part of the public records of the

Copyright Office.

S 509. Seizure and forfeiture

(a) All copies or phonorecords manufactured, reproduced, distrib-

uted, sold, or otherwise used, intended for use, or possessed

with intent to use in violation of section 506(a) [17 USC S

506(a)], and all plates, molds, matrices, masters, tapes, film

negatives, or other articles by means of which such copies or

phonorecords may be reproduced, and all electronic, mechanical,

or other devices for manufacturing, reproducing, or assembling

such copies or phonorecords may be seized and forfeited to the

èUnited States.

(b) The applicable procedure relating to (i) the seizure, summary

and judicial forfeiture, and condemnation of vessels, vehicles,

merchandise, and baggage for violations of the customs laws

contained in title 19 [19 USC SS 1 et seq.], (ii) the disposi-

tion of such vessels, vehicles, merchandise, and baggage or the

proceeds from the sale thereof, (iii) the remission or mitigation

of such forfeiture, (iv) the compromise or claims, and (v) the

award of compensation to informers in respect of such forfei-

tures, shall apply to seizures and forfeitures incurred, or

alleged to have been incurred, under the provisions of this

section, insofar as applicable and not inconsistent with the

provisions of this section; except that such duties as are im-

posed upon any officer or employee of the Treasury Department or

any other person with respect to the seizure and forfeiture of

vessels, vehicles, merchandise; and baggage under the provisions

of the customs laws contained in title 19 [19 USC SS 1 et seq.]

shall be performed with respect to seizure and forfeiture of all

articles described in subsection (1) by such officers, agents, or

other persons as may be authorized or designated for that purpose

by the Attorney General.

S 510. Remedies for alteration of programing by cable systems

(a) In any action filed pursuant to section 111(c)(3) [17 USC S

111(c)(3)], the following remedies shall be available:

(1) Where an action is brought by a party identified in

subsections (b) or (c) of section 501 [17 USC S 501], the

remedies provided by sections 502 through 505 [17 USC SS

502-505], and the remedy provided by subsection (b) of this

section; and

(2) When an action is brought by a party identified in

subsection (d) of section 501 [17 USC S 501], the remedies

provided by sections 502 and 505 [17 USC SS 502-505],

together with any actual damages suffered by such party as a

result of the infringement, and the remedy provided by

subsection (b) of this section.

(b) In any action filed pursuant to section 111(c)(3) [17 USC S

111(c)(3)], the court may decree that, for a period not to exceed

thirty days, the cable system shall be deprived of the benefit of

a compulsory license for one or more distant signals carried by

such cable system.