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- Xref: sparky misc.legal.computing:2305 comp.org.eff.talk:7162 misc.int-property:1485
- Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
- Path: sparky!uunet!zaphod.mps.ohio-state.edu!magnus.acs.ohio-state.edu!csn!teal!bhayden
- From: bhayden@teal.csn.org (Bruce Hayden)
- Subject: Re: S893 - Copyright infringement a felony
- Message-ID: <bhayden.722321744@teal>
- Keywords: copyright infringement felony
- Sender: news@csn.org (news)
- Nntp-Posting-Host: teal.csn.org
- Organization: Colorado SuperNet, Inc.
- References: <1992Nov17.082904.16242@netcom.com> <1992Nov17.123218.3980@eff.org> <1992Nov18.073412.492@netcom.com> <1992Nov20.230941.21278@eff.org>
- Date: Sat, 21 Nov 1992 04:55:44 GMT
- Lines: 38
-
- mnemonic@eff.org (Mike Godwin) writes:
-
- >Criminal intent is still needed. The rule of construction for
- >criminal statutes is that the intent applies to every element of the
- >crime. So you're not just willfully making copies--you're willful with
- >regard to all the other elements named in the statute. For example,
- >you have to be willfully making the copies *for gain*.
-
- >It is a mistake to suppose that 897 allows for someone to be an
- >unwitting criminal infringer.
-
- The problem is defining willfully. Unfortunately it is not consistently
- defined. There are two definitions:
- 1) you knew that you were infringing the copyright, and
- 2) you willfully did the act that turned out to infringe the C/R,
- but you did not think that you were copyinig.
-
- Most of the circuits apparently use the first. However, one or more
- of them use the second. The problem is with the second is that C/R
- infringement of software is in such flux today that it is not allways
- that easy to determine copying. For example, Lotus v. Borland would
- have probably been decided differently in the 2nd or 9th circuit.
- Note that Borland willfully created a spreadsheet with an (later
- determined) infringing 123 compatability mode. Would that constitute
- willfully for the criminal C/R statute? Yes, in some circuits.
- Today, we had a U.S. attorney (actually a senior prosecutor) tell
- us that that is how they would define it in the Colorado District.
-
- Bothered by the abovementioned difference in the definition of
- willful, the House subcommittee on intellectual property added
- a section that defined willful (using definition #1 above).
- The House judiciary committee removed the definition. Sen. Hatch
- apparently agreed with the removal when the bill got back to the Senate.
-
- Bruce E. Hayden
- (303) 758-8400
- bhayden@csn.org
-
-