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Politech is the oldest Internet resource devoted to politics and technology. Launched in 1994 by Declan McCullagh, the mailing list has chronicled the growing intersection of culture, technology, politics, and law. Since 2000, so has the Politech web site.
Duncan Frissell (who is a lawyer and longtime Politechnical) offers one analysis of the No Electronic Theft Act. Let me add another: Financial gain is defined in the NET Act as "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works." In other words, if you run a Napster client and share copyrighted MP3s expecting that others may be more likely to do the same, you're arguably a felon. Newer file-trading services even seek to enforce contributing, much as BBSs in the 1980s had upload-download ratios. I have every confidence that an entrepreneurial federal prosecutor could gain an indictment, if not a conviction. (And before libertarian activists shout "Jury Nullification" at me, judges seem pretty good at (a) screening anyone who knows about it from the jury and (b) telling juries that they don't get to do anything except apply the judge's law to the facts.) Also see: "Industry toasts first conviction under No Electronic Theft Act" http://www.politechbot.com/p-02031.html -Declan ******* Date: Wed, 25 Jul 2001 14:23:14 -0400 To: declan@well.com From: Duncan Frissell <frissell@panix.com> Subject: Re: FC: Geeks want to "Free Dmitry" -- but Congress says keep him in jail Note that some 55 million people decided last year to commit a federal felony by joining Napster and downloading copyrighted music. Fifty-five million felons. That's a passel of felons. See the No Electronic Theft Act: http://www.usdoj.gov/criminal/cybercrime/17-18red.htm The relevant section is: <i>17 U.S.C. §§ 506 & 507 § 506. Criminal offenses a) Criminal Infringement.--Any person who infringes a copyright willfully either-- 1.for purposes of commercial advantage or private financial gain, or 2.by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.</i> It was passed to overcome the limitations in the law of criminal copyright infringement illustrated by US v. LaMacchia http://philip.greenspun.com/dldf/dismiss-order.html. Note that David LaMacchia (like Napster users) had created a file directory accessible over the Net and filled with copyrighted software. The case against him was dismissed because he acted without expectation of commercial advantage or financial gain. The No Electronic Theft Act added a strict liability standard along the lines of "infringe $1K of copyrighted works, go to jail". Your motive doesn't count. The $1K limit applies to the retail value of the product. Let's apply the law to Napster as an over reaching prosecutor might. 1) The average CD costs $12 and contains 18 songs (assumed for illustrative purposes). Each song is therefore worth $0.66. 2) One thousand dollars divided by sixty-six cents equals 1515 songs. 3) If one values songs by the price of CD singles, it takes even fewer songs (500) since those go for about $2/song. 4) So any Napster user who made 1515 (or perhaps fewer) songs available was knowingly infringing copyright law and trafficking in copyrighted materials with a retail value of more than $1000. As the US argued in its AMICUS CURIAE in A&M v. Napster "When a Napster user makes the music files on his or her hard drive available for downloading by other Napster users, he or she is distributing the files to the public at large." See http://www.loc.gov/copyright/docs/napsteramicus.html 5) Likewise, a Napster user who just downloads songs is arguably "distributing" copyrighted works (to himself) since it is his command, generated by his computer, that grabs the song. So once he passes 1515 songs in 180 days, he's (arguably) a felon. DCF ---- Malum Prohibitum vs Malum in Se. Learn the difference. If a law is Malum Prohibitum (wrong merely because it's prohibited), breaking it is *not* wrong. If a law is Malum in Se (wrong because it's wrong), then breaking it is wrong. Opinions of bureaucrats do not create wrongs. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------