[pcductape] Re: Are you an unindicted federal felon?

  • From: "Martha Bagwell" <mabagwell@xxxxxxxxx>
  • To: <pcductape@xxxxxxxxxxxxx>
  • Date: Mon, 27 Jan 2003 12:56:17 -0600

Glad I've never used Kazaa!


Martha's Web
----- Original Message ----- 
From: "Pam" <ltf01@xxxxxxxxxx>
To: <pcductape@xxxxxxxxxxxxx>
Sent: Monday, January 27, 2003 11:39 AM
Subject: [pcductape] Are you an unindicted federal felon?


Perspective: The new jailbird jingle
By Declan McCullagh 
January 27, 2003, 4:00 AM PT

WASHINGTON--If you've ever used a peer-to-peer network and swapped
copyrighted files, chances are pretty good you're guilty of a federal

It doesn't matter if you've forsworn Napster, uninstalled Kazaa and now
are eagerly padding the record industry's bottom line by snapping up
$15.99 CDs by the cartload. 

Be warned--you're what prosecutors like to think of as an unindicted
federal felon. 

I'm not joking. A obscure law called the No Electronic Theft (NET) Act
that former U.S. President Bill Clinton signed in 1997 makes
peer-to-peer (P2P) pirates liable for $250,000 in fines and subject to
prison terms of up to three years. (You may want to read it, since
you'll likely be hearing more about it soon.) 

That's a long time to spend cooling your heels in Club Fed. 

Yet something strange is going on here. So far the Justice Department
has made precisely zero prosecutions of peer-to-peer users under the NET

This odd delay is not because peer-to-peer piracy is legal. It's not.
The NET Act covers people who willfully participate in the "reproduction
or distribution" of copyrighted works without permission, when that
activity is not covered by fair use rights. 

The law even grants copyright holders the right to hand a "victim impact
statement" to the judge at your trial, meaning you can expect an
appearance from the Recording Industry Association of America (RIAA),
the Motion Picture Association of America (MPAA) or the Business
Software Alliance (BSA), depending on what kind of files were on your
hard drive. You'll no longer have that hard drive, of course, because
it'll have been seized by the FBI, and you'll be in jail. 

Fretting that not enough peer-to-peer pirates are already in the
slammer, a band of congressmen asked Attorney General John Ashcroft last
July to begin some NET Act prosecutions, pronto. Their letter complained
of "a staggering increase in the amount of intellectual property pirated
over the Internet through peer-to-peer systems." The 19
politicos--including Sen. Joseph Biden, D-Del., Rep. James
Sensenbrenner, R-Wis., and Sen. Dianne Feinstein, D-Calif.--urged
Ashcroft "to prosecute individuals who intentionally allow mass copying
from their computer over peer-to-peer neworks." 

It didn't take long for the Justice Department to respond. A few weeks
later, John Malcolm, a deputy assistant attorney general, said to expect
some NET Act prosecutions. "There does have to be some kind of a public
message that stealing is stealing is stealing," said Malcolm, who
oversees the arm of the Justice Department that prosecutes copyright and
computer crime cases. 

Since then, however, there's been nothing but silence. The Justice
Department has been tight-lipped about its plans, and did not reply to a
request for comment on Friday. 

To duck a conviction, you'd have to, in essence, prove you were an
idiot. Not a problem for some, but a big problem for most file-sharers,
I suspect. 
--Polk Wagner, assistant professor, University of Pennsylvania Law
Yet there are signs that prosecutions are coming soon. A person close to
the RIAA told me that it has had recent meetings with the Justice

A second hint that pressure on the Justice Department is increasing lies
in a statement of principles that the RIAA signed this month with the
Computer Systems Policy Project and the BSA. The trio of groups say they
want more "governmental enforcement actions against infringers." 

For its part, the RIAA sent me a statement on Friday that seems to back
that up: "We are in constant communication with various law enforcement
agencies about all forms of piracy. It's illegal, and there clearly is
an important role that law enforcement can play...It's important to
remember that a 'Kazaa user' trafficking in copyrighted music without
permission is doing something that is clearly illegal, as numerous
courts have held that uploading and downloading copyrighted works
without permission constitutes direct infringement. And it is
well-established that copyright infringement can be a federal crime, so
government enforcement seems perfectly appropriate." 

Bob Kruger, BSA's vice president of enforcement, says his group is not
actively lobbying for prosecutions of peer-to-peer users, but would not
oppose them, either. "Industry has an obligation to make law enforcement
aware of the problems that beset it," Kruger said. "Congress has
recognized that government enforcement efforts are part of the overall

History of the law 

Rampant file-swapping is precisely the activity that the NET Act was
designed to punish. Rep. Bob Goodlatte, R-Va., the co-chairman of the
Congressional Internet Caucus, drafted the law to close what had become
known as the "LaMacchia Loophole." 

In 1994, David LaMacchia was a junior at the Massachusetts Institute of
Technology who was charged with wire fraud for creating a file-swapping
site on the Internet. But a federal judge dismissed the criminal
charges, ruling that although LaMacchia could be sued in civil court, he
was not guilty as charged. "It is not clear that making criminals of a
large number of consumers of computer software is a result that even the
software industry would consider desirable," said U.S. District Judge
Richard Stearns. 

In an e-mail to me, Goodlatte said: "We would like to see more done to
help guard against the wholesale violation of our copyright laws. We
have helped secure additional funding for the Department of Justice to
enforce the NET Act." 

The NET Act works in two ways: In general, violations are punishable by
one year in prison, if the total value of the files exceeds $1,000; or,
if the value tops $2,500, not more than five years in prison. Also, if
someone logs on to a file-trading network and shares even one MP3 file
without permission in "expectation" that others will do the same, full
criminal penalties kick in automatically. 

The odds of any specific person getting busted are pretty low, but
someone's going to be a test case.  
"I'd imagine there are, at minimum, several thousand file-swappers
meeting this definition," said Polk Wagner, who teaches copyright law at
the University of Pennsylvania. To duck a conviction, said Polk, "you'd
have to, in essence, prove you were an idiot. Not a problem for some,
but a big problem for most file sharers, I suspect." 

Jessica Litman, a professor at Wayne State University Law School, says
achieving a conviction wouldn't be trivial for prosecutors. "For
purposes of a criminal prosecution, you'd have to show more than that
the defendant made the files available--you'd have to show that she
actually made or distributed copies," Litman says. "Not too difficult
using today's tools, but you would need to show the actual copying of
the file by third parties rather than merely proving that defendant
downloaded the files into her share directory." 

There already have been successful prosecutions under the NET Act of Web
pirates--but not of peer-to-peer pirates. 

In 2001, a 21-year-old Michigan man named Brian Baltutat was
successfully prosecuted under the NET Act for posting a mere 142
software programs on the "Hacker Hurricane" Web site. Jason Spatafore,
25, pleaded guilty to posting just one movie on the Web--"Star Wars:
Episode I - The Phantom Menace"--in December 2000. 

A quick check of Kazaa on Friday afternoon showed that there were 4.1
million users online, sharing some 800 million files. The odds of any
specific person getting busted are pretty low, but someone's going to be
a test case. Got your lawyer ready? 


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