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Re: "My dad is a pirate."

From: Alexander Terekhov
Subject: Re: "My dad is a pirate."
Date: Fri, 22 Feb 2008 17:19:37 +0100

El Tux wrote:

[... Dowling v. United States, 473 U.S. 207 (1985) ...]

Oh dear El Tux, that (1985) was long before December 16, 1997, when
President Clinton signed HR 2265 -- the No Electronic Theft Act -- into


"The case of United States v. LaMacchia, 871 F. Supp. 535 (D. Mass.
1994), has drawn attention to current law's shortcomings. David
LaMacchia, a student at the Massachusetts Institute of Technology
described by the court as a ''computer hacker,'' id. at 536, created and
operated electronic bulletin boards on the Internet and encouraged users
to upload and download copies of popular copyrighted commercial
software. The illegal copying that took place on the bulletin boards
resulted in alleged losses to the copyright owners of over one million
dollars. Because LaMacchia lacked a commercial motive, however, the
government charged him with wire fraud rather than criminal copyright
infringement. Id. at 541–42. The court dismissed the indictment, holding
that copyright infringement can only be prosecuted under the Copyright
Act. Id. at 545 (relying on Dowling v. United States, 473 U.S. 207

    LaMacchia demonstrates that the lack of criminal penalties for
willful, noncommercial infringement has become a significant loophole in
the digital environment. The court itself decried this loophole,
expressing frustration with the confines of section 506(a):

[O]ne might at best describe [the defendant's] actions as heedlessly
irresponsible, and at worst as nihilistic, self-indulgent, and lacking
in any fundamental sense of values. Criminal as well as civil penalties
should probably attach to willful, multiple infringements of copyrighted
software even absent a commercial motive on the part of the infringer. .
. . But, it is the legislature, not the Court which is to define a
crime, and ordain its punishment.

Id. at 545 (quotations omitted). 

    H.R. 2265 responds to the court's call for a legislative solution to
its dilemma. The bill would close the loophole in current law by making
two main changes. First, it clarifies that the ''private financial
gain'' element of criminal infringement includes barter—that is,
situations where the illegal copies are traded for items of value such
as other copyrighted works, not only where they are sold for money.
Second, it redefines criminal infringement to include willful
infringement by reproduction or distribution, including by electronic
means, that lacks a commercial motive but has a substantial commercial


"Notwithstanding Jacobsen's confused discussion of unilateral
contracts, bilateral contracts, implied licenses, "licenses to the
world" and "bare" licenses in his Appellant's Brief, the issue at hand
is fairly simple."

  -- Brief of Appellees (CAFC 2008-1001).

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