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- Xref: sparky misc.legal.computing:2266 comp.org.eff.talk:7095 misc.int-property:1452
- Path: sparky!uunet!charon.amdahl.com!amdahl!JUTS!news
- From: tjc50@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>
- Sender: netnews@ccc.amdahl.com
- Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
- Organization: Amdahl Corporation
- Lines: 130
-
- In article <bhayden.721924831@teal>, bhayden@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 - tjc50@juts.ccc.amdahl.com - 408/992-2152
- The opinions presented above are not necessarily those of a sound mind.
-