FC: Duncan Frissell on why Napster users are federal felons

[Declan McCullagh <declan () well com>]

Duncan Frissell (who is a lawyer and longtime Politechnical) offers one 
analysis of the No Electronic Theft Act. Let me add another: Financial gain 
is defined in the NET Act as "receipt, or expectation of receipt, of 
anything of value, including the receipt of other copyrighted works."

In other words, if you run a Napster client and share copyrighted MP3s 
expecting that others may be more likely to do the same, you're arguably a 
felon. Newer file-trading services even seek to enforce contributing, much 
as BBSs in the 1980s had upload-download ratios.

I have every confidence that an entrepreneurial federal prosecutor could 
gain an indictment, if not a conviction. (And before libertarian activists 
shout "Jury Nullification" at me, judges seem pretty good at (a) screening 
anyone who knows about it from the jury and (b) telling juries that they 
don't get to do anything except apply the judge's law to the facts.)

Also see:

"Industry toasts first conviction under No Electronic Theft Act"
http://www.politechbot.com/p-02031.html

-Declan

*******

Date: Wed, 25 Jul 2001 14:23:14 -0400
To: declan () well com
From: Duncan Frissell <frissell () panix com>
Subject: Re: FC: Geeks want to "Free Dmitry" -- but Congress says keep
  him in jail

Note that some 55 million people decided last year to commit a federal 
felony by joining Napster and downloading copyrighted music.  Fifty-five 
million felons.  That's a passel of felons.

See the No Electronic Theft Act:

http://www.usdoj.gov/criminal/cybercrime/17-18red.htm

The relevant section is:

<i>17 U.S.C. §§ 506 & 507

§ 506. Criminal offenses

a) Criminal Infringement.--Any person who infringes a copyright willfully 
either--

1.for purposes of commercial advantage or private financial gain, or

2.by the reproduction or distribution, including by electronic means, 
during any 180-day period, of 1 or more copies or phonorecords of 1 or more 
copyrighted works, which have a total retail value of more than $1,000, 
shall be punished as provided under section 2319 of title 18. For purposes 
of this subsection, evidence of reproduction or distribution of a 
copyrighted work, by itself, shall not be sufficient to establish willful 
infringement.</i>

It was passed to overcome the limitations in the law of criminal copyright 
infringement illustrated by US v. LaMacchia 
http://philip.greenspun.com/dldf/dismiss-order.html. Note that David 
LaMacchia (like Napster users) had created a file directory accessible over 
the Net and filled with copyrighted software.  The case against him was 
dismissed because he acted without expectation of commercial advantage or 
financial gain.

The No Electronic Theft Act added a strict liability standard along the 
lines of "infringe $1K of copyrighted works, go to jail".  Your motive 
doesn't count.

The $1K limit applies to the retail value of the product.  Let's apply the 
law to Napster as an over reaching prosecutor might.

1)  The average CD costs $12 and contains 18 songs (assumed for 
illustrative purposes).  Each song is therefore worth $0.66.

2)  One thousand dollars divided by sixty-six cents equals 1515 songs.

3)  If one values songs by the price of CD singles, it takes even fewer 
songs (500) since those go for about $2/song.

4)  So any Napster user who made 1515 (or perhaps fewer) songs available 
was knowingly infringing copyright law and trafficking in copyrighted 
materials with a retail value of more than $1000.  As the US argued in its 
AMICUS CURIAE in A&M v. Napster "When a Napster user makes the music files 
on his or her hard drive available for downloading by other Napster users, 
he or she is distributing the files to the public at large."  See 
http://www.loc.gov/copyright/docs/napsteramicus.html

5)  Likewise, a Napster user who just downloads songs is arguably 
"distributing" copyrighted works (to himself) since it is his command, 
generated by his computer, that grabs the song.  So once he passes 1515 
songs in 180 days, he's (arguably) a felon.

DCF

----
Malum Prohibitum vs Malum in Se.  Learn the difference.  If a law is Malum 
Prohibitum (wrong merely because it's prohibited), breaking it is *not* 
wrong.  If a law is Malum in Se (wrong because it's wrong), then breaking 
it is wrong.  Opinions of bureaucrats do not create wrongs.




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