Is Copyright Infringement a Felony or Misdemeanor?

Under federal law, copyright infringement can be charged as either a felony or a misdemeanor, and the classification turns on three things: whether the infringer acted for profit, how many copies were made or distributed, and the total retail value of those copies. Most infringement never becomes a criminal case at all. When it does, prosecutors work from thresholds set out in 17 U.S.C. § 506 and 18 U.S.C. § 2319, and crossing a specific copy count and dollar figure is what pushes a misdemeanor into felony territory.¹²

Willfulness Comes First

Before any copy count or dollar figure matters, the government has to show the infringement was willful. That means the infringer knew what they were doing was wrong. Simply reproducing copyrighted material isn’t enough on its own.¹

Beyond willfulness, criminal liability requires the conduct to fit one of three statutory categories:

Infringement for commercial advantage or private financial gain. Selling counterfeit DVDs or running an ad-supported piracy site both qualify. No minimum copy count or dollar amount is needed; the profit motive is the trigger.
Reproducing or distributing copies with a total retail value of more than $1,000 within any 180-day window. No profit motive required.
Distributing a work being prepared for commercial release by making it available on a public computer network, when the person knew or should have known the work was headed for commercial distribution.¹

Once conduct fits one of those categories, the misdemeanor-versus-felony question kicks in.

When It’s a Misdemeanor

Misdemeanor charges cover criminal conduct that falls short of the felony volume and value thresholds. The maximum sentence is one year in prison, and the maximum fine under the federal sentencing framework is $100,000 for an individual.²³

For profit-motivated infringement, the misdemeanor tier is a catch-all. If the offense doesn’t reach 10 copies worth more than $2,500, it’s a misdemeanor. Someone selling a handful of bootleg copies at low prices fits here: the profit motive makes it criminal, but the small scale keeps the charge below the felony line.

For non-profit reproduction or distribution, the misdemeanor applies when the total retail value exceeds $1,000 but the offense doesn’t hit 10 or more copies worth $2,500 or more.²

When It’s a Felony

Felony thresholds vary by category, and the maximum sentence varies with them. Fines for felony convictions can reach $250,000 for an individual, or twice the gross gain or loss from the offense, whichever is greater.³

Profit-Motivated Infringement

When someone infringes for commercial advantage or financial gain and reproduces or distributes at least 10 copies of one or more works with a total retail value of more than $2,500 within a 180-day period, the offense is a felony carrying up to five years in prison. Both elements have to be proven. Falling short on either the copy count or the dollar figure drops the charge back to a misdemeanor.²

Large-Scale Non-Profit Distribution

Reproducing or distributing 10 or more copies worth $2,500 or more is a felony even without a profit motive. The maximum sentence is three years for a first offense. This is the provision that reaches large-volume file-sharing, where the uploader isn’t selling anything but is still moving copyrighted works at scale.²

Pre-Release Leaks

Leaking content before its commercial release is always a felony, even on a first offense and even when no money changes hands. The base maximum is three years in prison. If the leak was done for commercial advantage, the maximum rises to five years. The statute defines a work being prepared for commercial distribution to include unreleased software, music, movies, and sound recordings where the copyright owner has a reasonable expectation of commercial release.²¹

Repeat Convictions Make It Worse

A second or subsequent felony conviction raises the ceiling significantly. For profit-motivated infringement, the maximum doubles from five to ten years. For non-profit large-scale distribution, it rises from three to six years. Pre-release distribution carries up to six years on a second conviction, or up to ten years if the repeat offense involved a commercial motive.²

Fines, Forfeiture, and Restitution

Prison time is only part of the picture. Fines reach $250,000 for a felony and $100,000 for a misdemeanor at the individual level, and the court can set the fine at twice the gross gain or loss when that figure is higher.³

Forfeiture is mandatory. The court must order forfeiture of the infringing copies, any equipment or property used to produce or distribute them, and any proceeds from the offense. For a piracy operation of any size, that can mean losing computers, servers, and every dollar the operation generated.⁴

Restitution is also required. The defendant must pay the copyright owner for actual losses, calculated based on the greater of the property’s value at the time of the offense or at sentencing. Restitution goes directly to the victim, not to the government.⁵

Most Infringement Never Becomes Criminal

The felony-or-misdemeanor question only matters once prosecutors are involved, and that’s rare. The federal government brings criminal copyright cases, not the copyright owner, and prosecutors must prove willfulness beyond a reasonable doubt. Most disputes are handled as civil lawsuits between private parties, where the copyright owner sues for money damages or an injunction.

Civil exposure is not minor. A copyright owner can recover statutory damages between $750 and $30,000 per work, rising to as much as $150,000 per work if the infringement was willful, plus attorney’s fees in many cases.⁶⁷ For someone who shared files or reused online content, the civil consequences alone can reach six figures without any criminal charge ever being filed.

1
Office of the Law Revision Counsel. 17 USC 506 – Criminal Offenses
2
Office of the Law Revision Counsel. 18 USC 2319 – Criminal Infringement of a Copyright
3
Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine
4
U.S. Copyright Office. Appendix H Title 18 – Crimes and Criminal Procedure
5
Office of the Law Revision Counsel. 18 US Code 3663A – Mandatory Restitution to Victims of Certain Crimes
6
Office of the Law Revision Counsel. 17 USC 504 – Remedies for Infringement: Damages and Profits
7
Office of the Law Revision Counsel. 17 US Code 505 – Remedies for Infringement: Costs and Attorneys Fees