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Copyright Infringement is a CIMT (BIA 2016)

Matter of ZARAGOZA-VAQUERO, 26 I&N Dec. 814 (BIA 2016)

The offense of criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) (2012) and 18 U.S.C. § 2319(b)(1) (2012) is a crime involving moral turpitude.

The Board of Immigration Appeals (BIA) reasoned that the statute requires the defendant willfully infringed on copyright and that he did so for a commercial advantage or personal financial gain. The second element of the crime distinguishes criminal copyright infringement from civil copyright infringement.

"the respondent raised concerns at oral argument about the potential scope of criminal copyright infringement enforcement, arguing that the statute could extend to a student tutoring other students. The respondent’s concerns about the breadth of 17 U.S.C. § 506(a)(1)(A) are misplaced. As previously discussed, criminal copyright law is distinct from civil copyright law and not every infringement will qualify as a criminal offense. For example, the “fair use” doctrine would protect a student tutor’s educational use of copyrighted material. Moreover, as noted above, § 506(a)(1)(A) requires the Government to prove beyond a reasonable doubt that the defendant willfully infringed on the copyright and did so for commercial advantage or personal financial gain. We are therefore not persuaded by the respondent’s arguments regarding the scope of 17 U.S.C. § 506(a)(1)(A)." Matter of ZARAGOZA-VAQUERO, 26 I&N Dec. 814 (BIA 2016).

The Board states in their decision that they relied on Matter of Flores, 17 I&N Dec. 225, 228–30 (BIA 1980) and Matter of Kochlani, 24 I&N Dec. 128, 131 (BIA 2007) in their decision noting that criminal copyright infringement, like counterfeit tracking, is inherently immoral because it entails dishonest dealings and deliberate exploitation of the public.

The Board's reasoning is sound. This statute requires the defendant act willfully to illegally reproduce and distribute goods over that he does not own with a retail value $2,500 for a financial gain. Like grand larceny this is an intentional permanent conversion of high value, which is inherently immoral. The Board has long held that such theft crimes are CIMTs. Matter of Jurado, 24 I&N Dec. 29, (BIA 2006).

The Board has also held in the past that the intent to defraud are CIMTs. Jordan v. De George, 341 U.S. 223, 229 (1951).

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