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- 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
- Keywords: copyright infringement felony
- Message-ID: <80QS02AR2beP01@JUTS.ccc.amdahl.com>
- Date: 17 Nov 92 20:59:30 GMT
- References: <1992Nov17.082904.16242@netcom.com>
- Sender: netnews@ccc.amdahl.com
- Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
- Organization: Amdahl Corporation
- Lines: 57
-
- In article <1992Nov17.082904.16242@netcom.com>, tenney@netcom.com (Glenn S.
- Tenney) writes:
- > >2. What is the criminal intent required ? Is this a general
- > > intent or specific intent crime ?
- >
- > No criminal intent needed. Willfully making the copies for "gain",
- > but nothing about criminal intent.
-
- "Willful" is the particular instantiation of the criminal intent (the "mens
- reus" in criminal law terminology. Intent is required, the question is
- whether it is specific (the intent to infringe), or general (the intent to
- commit the act that is shown to be infringement).
-
- > >3. Does the law apply to all copyright infringement ? Or
- > > just of cases where exact copies are being made ?
- >
- > Since the law only mentions "copying", I would guess that some company
- > would be happy to go after someone who 'copies the A/V copyright'
- > of a piece of software. The intent was definitely to be making
- > exact copies, though.
-
- The law does not mention "copying".
-
- It does mention "copies", which should probably be construed according to the
- definition in Title 17 (Copyright):
-
- "Copies" are material objects, other than phonorecords, in which
- a work is fixed by any method now known or later developed, and
- from which the work can be perceived, reproduced, or otherwise
- communicated, either directly or with the aid of a machine or
- device. The term "copies" includes the material object, other
- than a phonorecord, in which the work is first fixed." 17 USC 101.
-
- Since the act teh statute complains of is violation of 17 USC 506(a), and
- 506(a)'s prohibits "infringement", which is defined (in 17 USC 501) as any
- violation of the exclusive rights defined in 17 USC 106, only one of which is
- the right "to reproduce the copyrighted work in copies of phonorecords", I
- can't see construing the statute to include only exact copying. Of course,
- if I was defendant's lawyer, I'd certainly argue the point. :-) I'd
- probably try to hang the argument on the fact that 106(1) and 106(3)
- (restricting distribution) are the only 106 subsections to refer to "copies",
- so this statute can only be meaningfully applied to those rights. But I'd
- expect to lose.
-
- > I hadn't thought about that aspect before (having only considered
- > making an exact copy), but if this law had been in effect long ago,
- > I could imagine that Apple would have gone after Microsoft on felony
- > charges for "copying" their copyrighted software. A bit farfetched,
- > but...
-
- Not a bad counter example, but I think Microsoft can't be convicted because
- their intent is not "willful" -- they had no specific intent to infringe the
- copyright, and so are not liable under 506(a). Interesting food for thought,
- though.
-
- Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
- The opinions presented above are not necessarily those of a sound mind.
-