Though there's wiggle room in the statute, the USG has two bars to clear in order to criminally prosecute the misuse of a copyrighted photo as a promotional device for a business:
* The infringement must be not only intentional but willful, which implies not only that the infringer deliberately used the photograph, but did so with full awareness of their duties under copyright law; that's a higher bar than simple intent.
* To be a felony, the infringement must not only have a goal of commercial advantage or private gain, but that advantage itself must be with respect to the reproduction and/or distribution rights of the original author.
If you deliberately harvested this guy's bug pictures and resold them, you'd be easy to charge criminally. But slapping one of his pictures on your website is probably too fuzzy to charge criminally.
There are four essential elements to a charge of criminal copyright infringement. In order to sustain a conviction under section 506(a), the government must demonstrate: (1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain.
The language in (4) is actually the subject of a good deal of discussion, because it changed (to that) relatively recently.
I don't understand the context. Is that published to give a general, and not completely accurate, picture of the law? Or is the DOJ actually saying they won't enforce 17 USC 506 a-1-b?
It's not a reflection of the actual law. Maybe it's a mistake. Even if it's an accurate reflection of DOJ policy, they can rewrite it whenever, and start enforcing the law as written... retroactively, even.
I wish it did! Most infringement of a commercial work seems to incur criminal penalties (though you can recover civil damages as well).
http://www.copyright.gov/title17/92chap5.html