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Re: "My dad is a pirate."

From: Banty
Subject: Re: "My dad is a pirate."
Date: 22 Feb 2008 08:25:37 -0800
User-agent: Direct Read News 5.16

In article <>, Alexander Terekhov says...

(top-posting, see below)


This wouldn't be the first time, by far, that long-superceded or old,
never-established minority judicial opinions (reading, Gini?) are quoted as Very
Important in usenet...


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

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