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

  • From: "Carl" <ctm007@xxxxxxxxxxxxxx>
  • To: <pcductape@xxxxxxxxxxxxx>
  • Date: Mon, 27 Jan 2003 13:07:52 -0600

Hi Pam,
That's the reason I never download shareware.
I do have freeware.
and I'm not in to music nor movies, although
I do go to the local movie house each Friday.
Thanks for the warning.
Here in Houston we get a radio talk show of 2
hours on Saturday afternoon called 10Commandos
and she talked about this new law the entire 2 hours.

----- 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?

> http://news.com.com/2010-1071-982121.html
> 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
> felony. 
> 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
> Act. 
> 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
> School  
> 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
> Department. 
> 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
> solution." 
> 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? 
> ///JSH
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