NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/misc/legal/computin/2320

Internet Message Format | 1992-11-22 | 3.4 KB

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Path: sparky!uunet!zaphod.mps.ohio-state.edu!sol.ctr.columbia.edu!destroyer!ncar!csn!teal!bhayden
From: [e-mail] (Bruce Hayden)
Subject: Re: Criminal intent was Re: S893 - Copyright infringement a felony
Message-ID: <bhayden.722438978@teal>
Keywords: copyright infringement felony
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Date: Sun, 22 Nov 1992 13:29:38 GMT
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[e-mail] (Glenn S. Tenney) writes:

>In article <bhayden.722378616@teal> [e-mail] (Bruce Hayden) writes:
>> ...
>>If you know that copying is not allowed, and you copy anyway,
>>then you have the mes rea of the crime. However, for S 893
>>(PL 102-xxx), you also need to make at least 10 copies, of
>>one or more works, with a value >= $2,500.
>> ...

>First, I wanted this thread to focus strictly on the criminal intent
>aspect of copying software rather than the other parts of S893
>(yes, PL 102-???).  However, S893 *does* have a catch-all of
>one year in prison or a fine if you make fewer than 10 copies
>or worth less than $2500 (as we've also been discussing).

Sorry, I think that the above was to explain that mens rea (criminal
intent) was not the only requirement in violating the law.

P.S. S 893 became PL 102-561 when signed by Bush on 10/28/92.

The reason that criminal intent scares me a little is
that the term "willful" has not been adequately defined. As I mentioned
in an earlier posting, a senior prosecutor in the U.S. Attorney's
Office in Denver indicated that they would define the term to mean
that the "Perp" willfully performed the act that ultimately
turned out to infringe, not that he knew that he was infringing
and willfully infringed anyway. Despite the legislative history
pronouncements to the contrary, this could result in prosecution
in what would normally be considered a commercial case (read
Lotus v. Borland or Gates v. Bando here in Colo.).

The problem in software copyright cases is that the law is unsettled.
What is considered infringement in one district or one circuit is
not considered infringement in another. I believe that Lotus v.
Borland might have gone the other way with a different judge (not
already predisposed by his Lotus v. Paperback decision), or in a
different circuit. In particular, compare that decision to those
in the 2nd and 9th circuits this year.

This problem is compounded in civil litigation with the recent
liberalization of corporate venue (28 U.S.C. Section 1391(c))
which gives the plaintiff almost a national choice of forum.

The problem still exists in criminal law. The major criteria appears
to be whether you can get a U.S. Attorney interested in the case.
This is a two prong problem: firstly political, secondly whether
he thinks he can get a conviction. The latter would be determined
to a great extent on how "willful" was defined in his circuit, and
how liberal the software copyright infringement decisions have been.

In any case, the House Judiciary Committee's refusal to define the
term "willful" has I believe greatly complicated the subject.

Bruce E. Hayden
[phone]
[e-mail]