>>14117368Pre-release infringement over a publicly-accessible computer network,[64] is always a felony, but the penalties increase if it is done for commercial advantage or private financial gain.[65]
In other words, there are four essential elements to a charge of felony copyright infringement:
A copyright exists.
The defendant acted willfully.
It was infringed by the defendant by reproduction or distribution of the copyrighted work, or (for violations of 17 U.S.C. §506(a)(1)(C)), by distribution.
The infringement consisted of either of the following:
(a) the defendant infringed at least 10 copies of one or more copyrighted works with a total retail value of more than $2,500 within a 180-day period; OR
(b) the defendant infringed by
(i) the distribution
(ii) by making available on a computer network accessible to members of the public
(iii) of a "work being prepared for commercial distribution"
(iv) the defendant knew or should have known the work was being prepared for commercial distribution.
