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Is it illegal to buy a DVD copy of an illegally taped broadway show?

Baldwin, NY |

Hi,

Since I was about 15, I have bought copies of illegal taped broadway shows to watch. I am a big musical fan and enjoy watching certain ones multiple times. Now I am much older and interested in buying a couple of more current copies of shows I enjoy...the person I used to buy from is MIA..but I randomly found a different person who will sell broadway DVDs in exchanges for amazon gift certificates. Now that I am older, I think more of the consequences of things. I REALLY want the DVDs...but not if I can get into trouble for it. Could I get in trouble for buying them? Is is possible this seller is a undercover cop trying to get people in trouble?
Thanks in advance!

-Concerned broadway lover

Attorney Answers 2


  1. It is illegal to buy a "bootleg" DVD of anything, including an illegally taped broadway show. Law enforcement primarily concerns its scarce resources with the persons who illegally tape the shows and sell the DVD's for profit. But if you are caught buying such illegal products, you can be charged as a theoretical matter with criminal and civil offenses, including for example, possession of, or trafficking in, counterfeit goods etc., and civil copyright infringement. While criminal prosecutions of individuals who buy such illegal DVD's are rare, many content providers in the film, music and theatre industries have stepped up efforts to inhibit illegal downloads and trafficking in such materials on the internet. If you are caught downloading an illegal tape of a film, show or song, you find yourself facing an expensive law suit. The penalties for illegal downloading under the copyright law range from $750 per work to $150,000 per work if you are found to have engaged in willful infringement (and most courts would deem your conduct to be willful---i.e., you surely know or should know that this is illegal). As a practical matter, the attorneys who handle these cases for copyright and trademark owners often send out "demand" letters which require payment of a modest sum often between $1000 and $3500) to settle the case. If the accused infringer does not settle and the case goes to court, the accused infringer will be responsible not only for statutory damages, but also attorneys fees which can be tens of thousands of dollars. Thus, most people who receive such a demand letter settle the case---but even small settlements of a few thousand dollars are expensive.

    How likely is it that you will get caught? If you purchase these materials on the internet it is increasingly likely that you will get caught. If you purchase on a street-corner, it is less likely that you will be caught (although there are undercover operations in this area--I am aware of undercover cops working the counterfeiting problem on Canal Street in Manhattan, for example, but the number of undercover operations is very small compared to the scope of the problem).

    Of equal importance---if you are a fan of musicals, do you realize that your conduct is having a serious adverse impact on the musical theater and film business? You are taking money out of the hands of the people responsible for writing, producing and creating musicals, reducing the economic resources available to write and produce new shows, create films of musicals, and provide jobs for actors, musicians, stagehands, ushers etc. Illegal downloading and trafficking of films, theatrical production, music, books etc is having a serious adverse impact on the economic well-being of the entire entertainment and media business. This is actually a profound moral issue---in my view it is unfair and immoral to consume films, shows, music, books and other original works without paying to do so. Although one illegal download might seem inconsequential, the proliferation of this kind of illegal conduct has reduced opportunities for actors, musicians, writers and and numerous others whose careers depend on the economic well-being of the industry. Thus, please think about the moral implications the next time you buy a copy of an illegally downloaded work. The issue is not just whether you will get caught (you probably will not get caught). The issue is whether your conduct is taking jobs away from the people who enrich our lives by creating original works of theatre, music and film.


  2. I have a different take than Attorney Ross. In short, I know of no federal law making it unlawful to buy a counterfeit DVD movie that is used solely within the home of the buyer.

    New York may have a state law that criminalizes that conduct, however. If so, I'd appreciate a cite.

    As for our federal laws, civil and criminal copyright and trademark law apply.

    Under criminal copyright law the rule is that “[c]opyright infringement is a crime if the defendant acted willfully and either (1) for commercial advantage or private financial gain, (2) by reproducing or distributing infringing copies of works with a total retail value of over $1,000 over a 180-day period, or (3) by distributing a ‘work being prepared for commercial distribution’ by making it available on a publicly-accessible computer network. 17 U.S.C. § 506(a)(1).” See “Prosecuting Intellectual Property Crimes” [available from the Department of Justice at http://goo.gl/Ig6Us ]. A consumer's purchase of a DVD containing an unlawfully taped movie is NOT made for “private financial gain” however. See id. at Section II.B.4.b. The federal criminal copyright law does not, therefore, apply. At all.

    As far as civil liability for direct copyright infringement, so long as none of the copyright owner’s 17 USC section 106 rights are invaded by THE CONSUMER then the consumer does not directly infringe. The only rights applicable are 106(3) and (5) — the exclusive right of the copyright owner to distribute and to display the work. If the consumer does not lend the movie or display it publicly then the copyright owner has no direct infringement claim. As for indirect infringement under secondary liability only “contributory infringement” could possibly apply: that is, a person is a contributory infringer if he or she (1) has knowledge of a third party's infringing activity, and (2) induces, causes, or materially contributes to the infringing conduct. But “inducement” requires more than a mere purchase [See Perfect 10, Inc. v. Visa Intern. Service Ass'n, 494 F. 3d 788, 800-803 (9th Cir. 2007) at http://goo.gl/Nm1N0 ]. And because the infringement has already occurred when the consumer's purchase is made that purchase cannot “cause” or “materially contribute” to the act of infringement.

    Under criminal trademark law the rule is that a “consumers' knowing acquisition of counterfeit items solely for personal use” does NOT constitute trafficking in counterfeit goods under the criminal trademark statute at 18 U.S.C. §2320(e)(2). See Prosecuting Intellectual Property Crimes [ http://goo.gl/Ig6Us — see section III.B.3.b.i ]. Loaning the DVD movies out to someone, however, may be trafficking and so would likely be unlawful.

    Because the consumer has no control over the seller of the counterfeit movie the consumer cannot be liable under any civil secondary liability theory. Which, I think, also precludes an aiding and abetting claim against the consumer as well.

    So ... I know of no legal proscription against owning and watching in your own home a counterfeit DVD movie. If, however, the DVD seller is arrested and informs the authorities that you have a counterfeit movie then the authorities [with a court order] can seize the DVD. At which time they will look real hard at you as an accomplice.

    And then, of course, there’s karma. You don’t want to mess with karma. And don't forget state law -- which the police, prosecutor, and judge will bend every which way to apply so as convict you of something or other. But it won't be criminal or civil copyright or trademark infringement.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.