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csn!teal!bhayden
From: bha...@teal.csn.org (Bruce Hayden)
Subject: Software Piracy Forum
Message-ID: <bhayden.721665010@teal>
Summary: Forum 11/20/92 on felonization of software piracy
Keywords: Software Piracy Felony
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Date: Fri, 13 Nov 1992 14:30:10 GMT
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Friday, November 20, 1992, the Rocky Mountain Computer and
Technology Forum will be discussing software piracy, especially
in view of recent revisions to 18 U.S.C. Section 2319 making it 
a felony to copy 10 or more works, or works with a value of 
$2,500 within a 6 month period. 

The bill making copyright infringement a felony was championed by 
the Software Publishers Association (SPA). It was also supported
by Nintendo. The IEEE testified against the bill.

Included on the panel is Bruce E. Hayden, Esq. an intellectual
property attorney whose practice emphasizes computer law issues.
There should be at least one more attorney on the panel, hopefully
a prosecutor, present or former, to speak of the technical  
requirements of the felony, especially as to the intent required.

The monthly (during the school year) Rocky Mountain Computer and
Technology Forums are lively discussions of current events, especially
at the intersection of computers, software, and the law. There are
invariably outspoken partisans on opposite sides of each issue, 
adding to the debate. 

Attorneys can obtain up to 2 Continuing Legal Education (CLE) credits
for attending. However, one need not be an attorney to attend. Indeed,
in the last year, many of the forums have had more non-attorneys present.
You are encouraged to bring a brown bag lunch and participate in the debate.

The forum is being held in the Barrett Room, Second Floor, Porter
Administration Building, University of Denver College of Law, 
7039 East 18th Avenue, Denver. This is the building just south of 
the Lowell Thomas Law Center located at 19th and Olive. 

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gatech!purdue!yuma!csn!teal!bhayden
From: bha...@teal.csn.org (Bruce Hayden)
Subject: S893 - Copyright infringement a felony
Message-ID: <bhayden.721924831@teal>
Summary: S893 made copyright infringement a felony. Need comments
Keywords: copyright infringement felony
Sender: ne...@csn.org (news)
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Date: Mon, 16 Nov 1992 14:40:31 GMT
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On October 29, 1992, President Bush signed S 893 amending 18 U.S.C.
Section 2319, making copyright infringement a possible felony if
        "the offense consists of the the reproduction or distribution,
        during any 180-day period, of at least 10 copies or
        phonorecords, of 1 or more copyrighted works, with a
        retail value of more than $2,500".

The Rocky Mountain Computer and Technology Forum will be discussing
this new law on 11/20 especially as it applies to software copyrights. 
I am one of the panelists in the forum, and need some help. I am an 
attorney whose practice is limited to intellectual property matters.
This means amoung other things that I have no criminal law background.

What would be helpful are your comments on the following:
1.      Do you read the law to require 10 copies _and_ $2,500?
        Surprising there is debate on this issue.

2.      What is the criminal intent required ? Is this a general
        intent or specific intent crime ?

3.      Does the law apply to all copyright infringement ? Or
        just of cases where exact copies are being made ?

4.      How does the answer to #2 effect the answer to #3 ?
        In other words, how does the intent requirement help
        determine what copyright infringement is covered ?

5.      Comments on any other issues relevant to the new law.

If you are going to be in Colorado this Friday, November 20, 1992
and would like to attend, call Dr. John Soma, at the University
of Denver Law School, (303) 871-6295. Everyone is welcome.

Thanks,

Bruce E. Hayden
Attorney at Law
(303) 758-8400
bha...@csn.org

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From: tj...@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <61O602Ie2b3z01@JUTS.ccc.amdahl.com>
Date: 17 Nov 92 01:28:58 GMT
References: <bhayden.721924831@teal>
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Organization: Amdahl Corporation
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In article <bhayden.721924831@teal>, bha...@teal.csn.org (Bruce Hayden) 
writes:
> On October 29, 1992, President Bush signed S 893 amending 18 U.S.C.
> Section 2319, making copyright infringement a possible felony if
>         "the offense consists of the the reproduction or distribution,
>         during any 180-day period, of at least 10 copies or
>         phonorecords, of 1 or more copyrighted works, with a
>         retail value of more than $2,500".
> 
> The Rocky Mountain Computer and Technology Forum will be discussing
> this new law on 11/20 especially as it applies to software copyrights. 
> I am one of the panelists in the forum, and need some help. I am an 
> attorney whose practice is limited to intellectual property matters.
> This means amoung other things that I have no criminal law background.
> 
> What would be helpful are your comments on the following:
> 1.      Do you read the law to require 10 copies _and_ $2,500?
>         Surprising there is debate on this issue.

This can be read either of two ways: 1) it requires 10 or more copies, the 
aggregate value of which is greater than $2500; 2) it requires 10 or more 
copies, each copy of which is valued at $2500.

It's tough to tell -- I'd have to look at the legislative history and/or 
debates.  Just as little more than a wild guess, I think it means the total 
value -- if it were a requirement that a single _work_ have a retail value of 
$2500, few works would qualify, and the statute would be a dead letter except 
for some exceptional cases.

I don't see a valid reading as being 10 copies _or_ having a value of >$2500.  
It takes to much to read "with" as meaning "or with".  My guess is that the 
basis for the argument for "or", if one exists, is that the predecessor 
statute (see below) had a series of scenarios leading to criminal liability, 
and used "or" to distinguish among them.  The new statute is more 
straightforward.

> 
> 2.      What is the criminal intent required ? Is this a general
>         intent or specific intent crime ?

S. 893 (well, we ought to call it PL 102-561 now) only updated 18 USC 2319 
(b).  To interpret this, you need to look the unaltered 18 USC 2319 (a), 
which states, 

     (a) Whoever violates section 506(a) (relating to criminal 
   offenses) of title 17 shall be punished as provided in subsection 
   (b) of this section and such penalties shall be in addition to any 
   other provisions of title 17 [Copyright] or any other law.  18 USC
   2319 (a).

17 USC 506(a) says,

     (a) Any person who infringes a copyright willfully and for 
   purposes of commercial advantage or private financial gain shall be
   punished as provided in section 2319 of title 18.  17 USC 506 (a).

Based on the use of "willfully", I'd say this calls for specific intent (17 
USC 101 does not include a special definition of "willful" for purposes of 
Title 17, so normal definitions apply; there might be a definition in Title 
18).
 
> 3.      Does the law apply to all copyright infringement ? Or
>         just of cases where exact copies are being made ?

I'd say any copyright infringement, so long as it meets the 17 USC 506(a) 
limitations.  The requirements for infringement are set forth in 17 USC 501, 
and, subject to some qualifications, state "Anyone who violates any of the 
exclusive rights of the copyright owner [as described in 17 USC 106 and 106A] 
 . . is an infringer of the copyright . . ."  Exact copies are limited to 17 
USC 106(1), and this definition is clearly more broad than that.

> 
> 4.      How does the answer to #2 effect the answer to #3 ?
>         In other words, how does the intent requirement help
>         determine what copyright infringement is covered ?

I don't think it's relevant to the types of infringement, so long as it was 
"willful".
 
> 5.      Comments on any other issues relevant to the new law.

This new law did not make copyright infringement a felony.  Copyright 
infringement already was a felony.  This law had the effect of changing the 
borders at which the infringement became a felony.  The previous requirement 
was:

 (b) Any person who commits an offense under subsection (a) of 
 this section--

   (1) shall be fined not more than $ 250,000 or imprisoned for
  not more than five years, or both, if the offense--

     (A) involves the reproduction or distribution, during any
   one-hundred-and-eighty-day period, of at least one thousand 
   phonorecords or copies infringing the copyright in one or more 
   sound recordings;

     (B) involves the reproduction or distribution, during any
   one-hundred-and-eighty-day period, of at least sixty-five copies
   infringing the copyright in one or more motion pictures or other  
   audiovisual works; or

     (C) is a second or subsequent offense under either of subsection 
   (b)(1) or (b)(2) of this section, where a prior offense involved
   a sound recording, or a motion picture or other audiovisual work;

   (2) shall be fined not more than $ 250,000 or imprisoned for not
  more than two years, or both, if the offense--

    (A) involves the reproduction or distribution, during any
  one-hundred-and-eighty-day period, of more than one hundred but 
  less than one thousand phonorecords or copies infringing the 
  copyright in one or more sound recordings; or

    (B) involves the reproduction or distribution, during any
  one-hundred-and-eighty-day period, of more than seven but less
  than sixty-five copies infringing the copyright in one or more 
  motion pictures or other audiovisual works; and

   (3) shall be fined not more than $ 25,000 or imprisoned for not
  more than one year, or both, in any other case.

    18 USC 2319 (1991).

PL 102-561 just "moves the fences in", as it were, lowering the number of 
requisite copies from 1000 to 10, and adding a value limit of $2500.


Terry Carroll - tj...@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.

Newsgroups: co.general
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boulder!csn!teal!bhayden
From: bha...@teal.csn.org (Bruce Hayden)
Subject: Forum on S 893 making software piracy a felony
Message-ID: <bhayden.721984876@teal>
Summary: Forum to discuss S 893 making software piracy a felony
Keywords: software piracy felony
Sender: ne...@csn.org (news)
Nntp-Posting-Host: teal.csn.org
Organization: Colorado SuperNet, Inc.
Distribution: co
Date: Tue, 17 Nov 1992 07:21:16 GMT
Lines: 31

Friday, November 20, 1992, the Rocky Mountain Computer and
Technology Forum will be discussing software piracy, especially
in view of recent revisions to 18 U.S.C. Section 2319 making it 
a felony to copy 10 or more works, or works with a value of 
$2,500 within a 6 month period. 

The bill making copyright infringement a felony was championed by 
the Software Publishers Association (SPA). It was also supported
by Nintendo. The IEEE testified against the bill.

Included on the panel is Bruce E. Hayden, Esq. an intellectual
property attorney whose practice emphasizes computer law issues.
There should be at least one more attorney on the panel, hopefully
a prosecutor, present or former, to speak of the technical  
requirements of the felony, especially as to the intent required.

The monthly (during the school year) Rocky Mountain Computer and
Technology Forums are lively discussions of current events, especially
at the intersection of computers, software, and the law. There are
invariably outspoken partisans on opposite sides of each issue, 
adding to the debate. 

Attorneys can obtain up to 2 Continuing Legal Education (CLE) credits
for attending. However, one need not be an attorney to attend. Indeed,
in the last year, many of the forums have had more non-attorneys present.
You are encouraged to bring a brown bag lunch and participate in the debate.

The forum is being held in the Barrett Room, Second Floor, Porter
Administration Building, University of Denver College of Law, 
7039 East 18th Avenue, Denver. This is the building just south of 
the Lowell Thomas Law Center located at 19th and Olive. 

Xref: sparky misc.legal.computing:2269 comp.org.eff.talk:
7098 misc.int-property:1454
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Path: sparky!uunet!ukma!darwin.sura.net!spool.mu.edu!umn.edu!csus.edu!
netcom.com!tenney
From: ten...@netcom.com (Glenn S. Tenney)
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov17.082904.16242@netcom.com>
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
References: <bhayden.721924831@teal>
Date: Tue, 17 Nov 1992 08:29:04 GMT
Lines: 37

In article <bhayden.721924831@teal> 
bha...@teal.csn.org (Bruce Hayden) writes:
>1.      Do you read the law to require 10 copies _and_ $2,500?
>        Surprising there is debate on this issue.

There should be no debate.  Copying a single piece of software
worth $5,000 would not be a felony, nor would be making 100 copies
of a $10 piece of software.  This is based on not only my reading of
it, but our committee's discussions since the bill was introduced,
and our committee's discussions with legislative staff.

>2.      What is the criminal intent required ? Is this a general
>        intent or specific intent crime ?

No criminal intent needed.  Willfully making the copies for "gain",
but nothing about criminal intent.

>3.      Does the law apply to all copyright infringement ? Or
>        just of cases where exact copies are being made ?

Since the law only mentions "copying", I would guess that some company
would be happy to go after someone who 'copies the A/V copyright'
of a piece of software.  The intent was definitely to be making
exact copies, though.

I hadn't thought about that aspect before (having only considered
making an exact copy), but if this law had been in effect long ago,
I could imagine that Apple would have gone after Microsoft on felony
charges for "copying" their copyrighted software.  A bit farfetched,
but...

-----
Member of the IEEE USA's Intellectual Property Committee

-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
ten...@netcom.com          Ham radio: AA6ER

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From: mnem...@eff.org (Mike Godwin)
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov17.123218.3980@eff.org>
Originator: mnem...@eff.org
Keywords: copyright infringement felony
Sender: use...@eff.org (NNTP News Poster)
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Organization: Electronic Frontier Foundation
References: <bhayden.721924831@teal> <1992Nov17.082904.16242@netcom.com>
Date: Tue, 17 Nov 1992 12:32:18 GMT
Lines: 18

In article <1992Nov17.0...@netcom.com> 
ten...@netcom.com (Glenn S. Tenney) writes:

>No criminal intent needed.  Willfully making the copies for "gain",
>but nothing about criminal intent.

Glenn, the requirement that the person be willfully making copies for
gain is in fact a criminal-intent requirement.


--Mike



-- 
Mike Godwin,    |"I can solve this Orient Express thing without
mnem...@eff.org| breaking a sweat. It's that simple."
(617) 864-0665  | 
EFF, Cambridge  |                           --Hercule Perot

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From: tj...@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Message-ID: <80QS02AR2beP01@JUTS.ccc.amdahl.com>
Date: 17 Nov 92 20:59:30 GMT
References: <1992Nov17.082904.16242@netcom.com>
Sender: net...@ccc.amdahl.com
Reply-To: tj...@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation
Lines: 57

In article <1992Nov17.0...@netcom.com>, ten...@netcom.com (Glenn S. 
Tenney) writes:
> >2.      What is the criminal intent required ? Is this a general
> >        intent or specific intent crime ?
> 
> No criminal intent needed.  Willfully making the copies for "gain",
> but nothing about criminal intent.

"Willful" is the particular instantiation of the criminal intent (the "mens 
reus" in criminal law terminology.  Intent is required, the question is 
whether it is specific (the intent to infringe), or general (the intent to 
commit the act that is shown to be infringement).

> >3.      Does the law apply to all copyright infringement ? Or
> >        just of cases where exact copies are being made ?
> 
> Since the law only mentions "copying", I would guess that some company
> would be happy to go after someone who 'copies the A/V copyright'
> of a piece of software.  The intent was definitely to be making
> exact copies, though.

The law does not mention "copying".

It does mention "copies", which should probably be construed according to the 
definition in Title 17 (Copyright):

    "Copies" are material objects, other than phonorecords, in which
    a work is fixed by any method now known or later developed, and
    from which the work can be perceived, reproduced, or otherwise
    communicated, either directly or with the aid of a machine or 
    device. The term "copies" includes the material object, other 
    than a phonorecord, in which the work is first fixed." 17 USC 101.

Since the act teh statute complains of is violation of 17 USC 506(a), and 
506(a)'s prohibits "infringement", which is defined (in 17 USC 501) as any 
violation of the exclusive rights defined in 17 USC 106, only one of which is 
the right "to reproduce the copyrighted work in copies of phonorecords", I 
can't see construing the statute to include only exact copying.  Of course, 
if I was defendant's lawyer, I'd certainly argue the point.  :-)  I'd 
probably try to hang the argument on the fact that 106(1) and 106(3) 
(restricting distribution) are the only 106 subsections to refer to "copies", 
so this statute can only be meaningfully applied to those rights.  But I'd 
expect to lose.
 
> I hadn't thought about that aspect before (having only considered
> making an exact copy), but if this law had been in effect long ago,
> I could imagine that Apple would have gone after Microsoft on felony
> charges for "copying" their copyrighted software.  A bit farfetched,
> but...

Not a bad counter example, but I think Microsoft can't be convicted because 
their intent is not "willful" -- they had no specific intent to infringe the 
copyright, and so are not liable under 506(a).  Interesting food for thought, 
though.

Terry Carroll - tj...@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.

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From: ten...@netcom.com (Glenn S. Tenney)
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov18.073412.492@netcom.com>
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
References: <bhayden.721924831@teal> 
<1992Nov17.082904.16242@netcom.com> <1992Nov17.123218.3980@eff.org>
Date: Wed, 18 Nov 1992 07:34:12 GMT
Lines: 22

In article <1992Nov17....@eff.org> mnem...@eff.org (Mike Godwin) writes:
>Glenn, the requirement that the person be willfully making copies for
>gain is in fact a criminal-intent requirement.

Therefore, if I knowinly make copies of something that I did NOT know
was itself an illegal copy, then:

(a) I did willfully make copies

(b) there was no criminal intent

I know that 'a' is true, but I would not have thought that 'b'
was true -- but that is my reading of what you said.

Are we discussing a significant point, though?  I was merely trying
to say that no CRIMINAL intent was needed.


-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
ten...@netcom.com          Ham radio: AA6ER

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From: ten...@netcom.com (Glenn S. Tenney)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov18.081414.4874@netcom.com>
Date: 18 Nov 92 08:14:14 GMT
References: <1992Nov17.081556.15591@netcom.com> 
<78WW02z12brH01@JUTS.ccc.amdahl.com>
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Lines: 50

In article <78WW02z...@JUTS.ccc.amdahl.com> 
tj...@juts.ccc.amdahl.com (Terry Carroll) writes:
>It looks that way on first reading, but not when you look closely.  If you 
>look at the portions of the predecessor statue I posted, you'll see that, 
>while it is true that the only works specifically mentioned as coming within 
>their respective provisions were sound recordings and audio visual works (in 
>2319(b)(1) and 2319(b)(2)), there is (er, _was_; I've got to remind myself 
>that this is the subsection that was just replaced) also a catch-all 
>provision in 2319(b)(3).  Read in context, that is:
>
>  "(b) Any person who commits an offense under subsection (a) of 
>  this section-- 
>     
>    (1) [omitted]
>    (2) [omitted]
>    (3) shall be fined not more than $ 25,000 or imprisoned for not
>    more than one year, or both, in any other case."

And 2319(c) limits which exclusive rights we're talking about
(to 106(1) and (3) only excluding derivative works, performances,
and public displays).

I remember that being added solely for the record and movie companies.
It's interesting that 2319(b) (1) and (2) explicitly cover movies
and records, but that (3) is just a generic "anything else".  This may
be asking too much of our legislators, but perhaps they meant that since
(1) and (2) were well defined -- but covering numbers of copies --
they obviously meant that (3) was intended to cover similar violations
but of lesser quantities.

>Combining all these statutory provisions, where the work involved is not a 
>sound recording or audiovisual work, I read this as:
>
>   "Any person who infringes a copyright willfully and for 
>   purposes of commercial advantage or private financial gain 
>   shall be fined not more than $ 25,000 or imprisoned for not
>   more than one year, or both".
>

If you are correct that 2319(b)(3) is in force for ALL OTHER INFRINGEMENTS,
then -- if you make a single photocopy of a page from Newsweek, you could
be fined $25,000.   No, I think we're missing something here.  Then
again, I love a law that makes virtually 100% of the population
potential felons (let's see, I'm sure that almost everyone has
made some photocopy of a magazine article instead of BUYING an
extra issue -- read that as private financial gain).

-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
ten...@netcom.com          Ham radio: AA6ER

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From: tj...@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <cdde02232bzR01@JUTS.ccc.amdahl.com>
Date: 19 Nov 92 17:57:43 GMT
References: <1992Nov18.081414.4874@netcom.com>
Sender: net...@ccc.amdahl.com
Reply-To: tj...@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation
Lines: 63

In article <1992Nov18....@netcom.com>, ten...@netcom.com (Glenn S. 
Tenney) writes:
> And 2319(c) limits which exclusive rights we're talking about
> (to 106(1) and (3) only excluding derivative works, performances,
> and public displays).


2319(c) did not limit which rights to which 2319 as a whole applies.  It only 
serves to define the terms used in 2319(b) which would otherwise be undefined 
in Title 18.  Here's how 2319(c) looked prior to its recent update:

      (c) As used in this section--

       (1) the terms "sound recording", "motion picture", "audiovisual
      work", "phonorecord", and "copies" have, respectively, the 
      meanings set forth in section 101 (relating to definitions) of 
      title 17; and

       (2) the terms "reproduction" and "distribution" refer to the 
      exclusive rights of a copyright owner under clauses (1) and (3)  
      respectively of section 106 (relating to exclusive rights in 
      copyrighted works), as limited by sections 107 through 118, of 
      title 17.

In no way does this subsection limit 2319(b)(3).

> I remember that being added solely for the record and movie companies.
> It's interesting that 2319(b) (1) and (2) explicitly cover movies
> and records, but that (3) is just a generic "anything else".  This may
> be asking too much of our legislators, but perhaps they meant that since
> (1) and (2) were well defined -- but covering numbers of copies --
> they obviously meant that (3) was intended to cover similar violations
> but of lesser quantities.

In the absence of some pretty persuasive legislative history, I don't think 
that that conclusion is correct;  but I've seen less likely interpretations 
from judges of other laws, so who knows?

> 
> If you are correct that 2319(b)(3) is in force for ALL OTHER INFRINGEMENTS,
> then -- if you make a single photocopy of a page from Newsweek, you could
> be fined $25,000.

Well, remember that it still has to meet the requirements if 17 USC 506(a) -- 
willful and for purposes of commercial advantage or private financial gain.

> No, I think we're missing something here.  Then
> again, I love a law that makes virtually 100% of the population
> potential felons (let's see, I'm sure that almost everyone has
> made some photocopy of a magazine article instead of BUYING an
> extra issue -- read that as private financial gain).

I don't think that definition of "private fiancial gain" would fly.  However, 
I do agree with you that the law, as it stood prior to PL102-561, is unduely 
harsh, and that may have been part of the impetus to reframe it.

I should add to all this that, from my side, anyways, I've been limited to 
looking only at the text of the statute.  Maybe some cases interpreting it 
would shed some light.


Terry Carroll - tj...@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.

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eff!mnemonic
From: mnem...@eff.org (Mike Godwin)
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov20.230941.21278@eff.org>
Originator: mnem...@eff.org
Keywords: copyright infringement felony
Sender: use...@eff.org (NNTP News Poster)
Nntp-Posting-Host: eff.org
Organization: Electronic Frontier Foundation
References: <1992Nov17.082904.16242@netcom.com> 
<1992Nov17.123218.3980@eff.org> <1992Nov18.073412.492@netcom.com>
Date: Fri, 20 Nov 1992 23:09:41 GMT
Lines: 34

In article <1992Nov18....@netcom.com> 
ten...@netcom.com (Glenn S. Tenney) writes:

>Therefore, if I knowinly make copies of something that I did NOT know
>was itself an illegal copy, then:
>
>(a) I did willfully make copies
>
>(b) there was no criminal intent
>
>I know that 'a' is true, but I would not have thought that 'b'
>was true -- but that is my reading of what you said.
>
>Are we discussing a significant point, though?  I was merely trying
>to say that no CRIMINAL intent was needed.

Criminal intent is still needed. The rule of construction for 
criminal statutes is that the intent applies to every element of the
crime. So you're not just willfully making copies--you're willful with
regard to all the other elements named in the statute. For example,
you have to be willfully making the copies *for gain*.

It is a mistake to suppose that 897 allows for someone to be an
unwitting criminal infringer.


--Mike



-- 
Mike Godwin,    |"I can solve this Orient Express thing without
mnem...@eff.org| breaking a sweat. It's that simple."
(617) 864-0665  | 
EFF, Cambridge  |                           --Hercule Perot

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csn!teal!bhayden
From: bha...@teal.csn.org (Bruce Hayden)
Subject: Re: S893 - Copyright infringement a felony
Message-ID: <bhayden.722321744@teal>
Keywords: copyright infringement felony
Sender: ne...@csn.org (news)
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References: <1992Nov17.082904.16242@netcom.com> 
<1992Nov17.123218.3980@eff.org> <1992Nov18.073412.492@netcom.com> 
<1992Nov20.230941.21278@eff.org>
Date: Sat, 21 Nov 1992 04:55:44 GMT
Lines: 38

mnem...@eff.org (Mike Godwin) writes:

>Criminal intent is still needed. The rule of construction for 
>criminal statutes is that the intent applies to every element of the
>crime. So you're not just willfully making copies--you're willful with
>regard to all the other elements named in the statute. For example,
>you have to be willfully making the copies *for gain*.

>It is a mistake to suppose that 897 allows for someone to be an
>unwitting criminal infringer.

The problem is defining willfully. Unfortunately it is not consistently
defined. There are two definitions: 
1) you knew that you were infringing the copyright, and
2) you willfully did the act that turned out to infringe the C/R,
but you did not think that you were copyinig.

Most of the circuits apparently use the first. However, one or more
of them use the second. The problem is with the second is that C/R
infringement of software is in such flux today that it is not allways
that easy to determine copying. For example, Lotus v. Borland would
have probably been decided differently in the 2nd or 9th circuit. 
Note that Borland willfully created a spreadsheet with an (later
determined) infringing 123 compatability mode. Would that constitute
willfully for the criminal C/R statute? Yes, in some circuits.
Today, we had a U.S. attorney (actually a senior prosecutor) tell
us that that is how they would define it in the Colorado District.

Bothered by the abovementioned difference in the definition of
willful, the House subcommittee on intellectual property added
a section that defined willful (using definition #1 above). 
The House judiciary committee removed the definition. Sen. Hatch
apparently agreed with the removal when the bill got back to the Senate.

Bruce E. Hayden
(303) 758-8400
bha...@csn.org

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From: ten...@netcom.com (Glenn S. Tenney)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Criminal intent  was Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Message-ID: <1992Nov21.081134.12944@netcom.com>
Date: 21 Nov 92 08:11:34 GMT
Article-I.D.: netcom.1992Nov21.081134.12944
References: <1992Nov17.123218.3980@eff.org> 
<1992Nov18.073412.492@netcom.com> <1992Nov20.230941.21278@eff.org>
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Lines: 24

In article <1992Nov20.2...@eff.org> mnem...@eff.org (Mike Godwin) writes:
> ...
>Criminal intent is still needed. The rule of construction for 
>criminal statutes is that the intent applies to every element of the
>crime. So you're not just willfully making copies--you're willful with
>regard to all the other elements named in the statute. For example,
>you have to be willfully making the copies *for gain*.

This may not be the proper forum, but not being an attorney I
am at a loss in understanding mens rea and the criminal nature
of a "willful" act.

If you know that the program you own is copyrighted,
and you know that copying it to give to someone else
is not allowed, but you DO copy it and give it to a
friend, have you met the definition of "willful" copying?
Can we ignore how many copies were made and whether you
gained financially from them?  Is that critical in determining
whether the copy you made was a willful infringement?

-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
ten...@netcom.com          Ham radio: AA6ER

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sol.ctr.columbia.edu!eff!mnemonic
From: mnem...@eff.org (Mike Godwin)
Subject: Re: Criminal intent  was Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov21.150526.29862@eff.org>
Originator: mnem...@eff.org
Keywords: copyright infringement felony
Sender: use...@eff.org (NNTP News Poster)
Nntp-Posting-Host: eff.org
Organization: Electronic Frontier Foundation
References: <1992Nov18.073412.492@netcom.com> 
<1992Nov20.230941.21278@eff.org> <1992Nov21.081134.12944@netcom.com>
Date: Sat, 21 Nov 1992 15:05:26 GMT
Lines: 24

In article <1992Nov21.0...@netcom.com> ten...@netcom.com (Glenn S. Tenney) writes:

>This may not be the proper forum, but not being an attorney I
>am at a loss in understanding mens rea and the criminal nature
>of a "willful" act.

It's not that willfulness is itself criminal, Glenn. It's that if you
are willful with regard to the elements of the crime, as specified in the
statute, you have the requisite criminal intent (mens rea).

Thus, you normally have to have the "willfully" state of mind with regard
not only to making the copies, but also with regard to the other elements
of the crime as specified in the statute, such as doing it for gain.


--Mike



-- 
Mike Godwin,    |"I can solve this Orient Express thing without
mnem...@eff.org| breaking a sweat. It's that simple."
(617) 864-0665  | 
EFF, Cambridge  |                           --Hercule Perot

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csn!teal!bhayden
From: bha...@teal.csn.org (Bruce Hayden)
Subject: Re: Criminal intent was Re: S893 - Copyright infringement a felony
Message-ID: <bhayden.722378616@teal>
Keywords: copyright infringement felony
Sender: ne...@csn.org (news)
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Organization: Colorado SuperNet, Inc.
References: <1992Nov17.123218.3980@eff.org> 
<1992Nov18.073412.492@netcom.com> 
<1992Nov20.230941.21278@eff.org> <1992Nov21.081134.12944@netcom.com>
Date: Sat, 21 Nov 1992 20:43:36 GMT
Lines: 38

ten...@netcom.com (Glenn S. Tenney) writes:
>>Criminal intent is still needed. The rule of construction for 
>>criminal statutes is that the intent applies to every element of the
>>crime. So you're not just willfully making copies--you're willful with
>>regard to all the other elements named in the statute. For example,
>>you have to be willfully making the copies *for gain*.

>This may not be the proper forum, but not being an attorney I
>am at a loss in understanding mens rea and the criminal nature
>of a "willful" act.

>If you know that the program you own is copyrighted,
>and you know that copying it to give to someone else
>is not allowed, but you DO copy it and give it to a
>friend, have you met the definition of "willful" copying?
>Can we ignore how many copies were made and whether you
>gained financially from them?  Is that critical in determining
>whether the copy you made was a willful infringement?

If you know that copying is not allowed, and you copy anyway, 
then you have the mes rea of the crime. However, for S 893 
(PL 102-xxx), you also need to make at least 10 copies, of
one or more works, with a value >= $2,500. 

Think of criminal law as a checklist - a list of the requirements
for the crime. In this case the checklist would look like this:
	1.	Willful intent..
	2.	Commercial gain, etc.
	3.	At least 10 copies of 1 or more works
	4.	Value >= $2,500
The state (U.S. Attorney) must show all of the above to prove the crime.
Failure to prove any of the above (beyond a reasonable doubt)
necessitates a not guilty verdict.

Bruce E. Hayden
(303) 758-8400
bha...@csn.org

Xref: sparky misc.legal.computing:2318 comp.org.eff.talk:7183 misc.int-property:1497
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Path: sparky!uunet!think.com!spool.mu.edu!umn.edu!csus.edu!netcom.com!tenney
From: ten...@netcom.com (Glenn S. Tenney)
Subject: Re: Criminal intent was Re: S893 - Copyright infringement a felony
Message-ID: <1992Nov22.061232.10185@netcom.com>
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
References: <1992Nov20.230941.21278@eff.org> 
<1992Nov21.081134.12944@netcom.com> <bhayden.722378616@teal>
Date: Sun, 22 Nov 1992 06:12:32 GMT
Lines: 19

In article <bhayden.722378616@teal> bha...@teal.csn.org (Bruce Hayden) writes:
> ...
>If you know that copying is not allowed, and you copy anyway, 
>then you have the mes rea of the crime. However, for S 893 
>(PL 102-xxx), you also need to make at least 10 copies, of
>one or more works, with a value >= $2,500. 
> ...

First, I wanted this thread to focus strictly on the criminal intent
aspect of copying software rather than the other parts of S893
(yes, PL 102-???).  However, S893 *does* have a catch-all of
one year in prison or a fine if you make fewer than 10 copies
or worth less than $2500 (as we've also been discussing).


-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
ten...@netcom.com          Ham radio: AA6ER

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2320 comp.org.eff.talk:7187 misc.int-property:1499
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destroyer!ncar!csn!teal!bhayden
From: bha...@teal.csn.org (Bruce Hayden)
Subject: Re: Criminal intent was Re: S893 - Copyright infringement a felony
Message-ID: <bhayden.722438978@teal>
Keywords: copyright infringement felony
Sender: ne...@csn.org (news)
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Organization: Colorado SuperNet, Inc.
References: <1992Nov20.230941.21278@eff.org> 
<1992Nov21.081134.12944@netcom.com> <bhayden.722378616@teal> 
<1992Nov22.061232.10185@netcom.com>
Date: Sun, 22 Nov 1992 13:29:38 GMT
Lines: 58

ten...@netcom.com (Glenn S. Tenney) writes:

>In article <bhayden.722378616@teal> bha...@teal.csn.org (Bruce Hayden) writes:
>> ...
>>If you know that copying is not allowed, and you copy anyway, 
>>then you have the mes rea of the crime. However, for S 893 
>>(PL 102-xxx), you also need to make at least 10 copies, of
>>one or more works, with a value >= $2,500. 
>> ...

>First, I wanted this thread to focus strictly on the criminal intent
>aspect of copying software rather than the other parts of S893
>(yes, PL 102-???).  However, S893 *does* have a catch-all of
>one year in prison or a fine if you make fewer than 10 copies
>or worth less than $2500 (as we've also been discussing).

Sorry, I think that the above was to explain that mens rea (criminal
intent) was not the only requirement in violating the law.

P.S. S 893 became PL 102-561 when signed by Bush on 10/28/92.

The reason that criminal intent scares me a little is
that the term "willful" has not been adequately defined. As I mentioned
in an earlier posting, a senior prosecutor in the U.S. Attorney's
Office in Denver indicated that they would define the term to mean 
that the "Perp" willfully performed the act that ultimately
turned out to infringe, not that he knew that he was infringing
and willfully infringed anyway. Despite the legislative history
pronouncements to the contrary, this could result in prosecution
in what would normally be considered a commercial case (read
Lotus v. Borland or Gates v. Bando here in Colo.). 

The problem in software copyright cases is that the law is unsettled.
What is considered infringement in one district or one circuit is
not considered infringement in another. I believe that Lotus v. 
Borland might have gone the other way with a different judge (not
already predisposed by his Lotus v. Paperback decision), or in a 
different circuit. In particular, compare that decision to those
in the 2nd and 9th circuits this year. 

This problem is compounded in civil litigation with the recent 
liberalization of corporate venue (28 U.S.C. Section 1391(c))
which gives the plaintiff almost a national choice of forum.

The problem still exists in criminal law. The major criteria appears
to be whether you can get a U.S. Attorney interested in the case.
This is a two prong problem: firstly political, secondly whether
he thinks he can get a conviction. The latter would be determined
to a great extent on how "willful" was defined in his circuit, and
how liberal the software copyright infringement decisions have been.

In any case, the House Judiciary Committee's refusal to define the
term "willful" has I believe greatly complicated the subject.

Bruce E. Hayden
(303) 758-8400
bha...@csn.org

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