Meet the DoJ's 'Anti-Piracy' Lawyers

This week's Slashdot interview guests are the 'point people' for Federal criminal actions against online file-traders and software misapproprators. They know some Slashdot readers may have little sympathy for what they do all day. Be that as it may, this is a great chance to understand what it's like on the enforcement side of the intellectual property coin. We have a special set of 'ground rules' for this interview (below) supplied by the Department of Justice that we must ask you to read before submitting questions.

From the DoJ (verbatim):

Answering your questions will be the attorneys assigned to prosecute intellectual property crimes in the Department of Justice's Computer Crime and Intellectual Property Section (CCIPS). Spearheading this group will be Michael O'Leary, Deputy Chief for Intellectual Property who oversees the day-to-day intellectual property enforcement operations. Here is some background on CCIPS and their intellectual property efforts:

CCIPS began as a small group within DOJ in 1991, with a focus on network crimes (e.g. hacking into machines, destructive worms and viruses, denial of service attacks), intellectual property crimes (e.g. software piracy and counterfeiting), and electronic evidence issues. CCIPS is part of the Criminal Division of DOJ (which, as its name suggests, is primarily responsible for enforcement of federal criminal laws). Today, the section has grown to almost 40 lawyers, of whom about a dozen focus on IP issues. (Please keep in mind that it will be the IP prosecutors answering questions here, so save your non-IP-related hacking or electronic evidence issues for another time.)

What do the attorneys assigned to IP at CCIPS do? The IP prosecutors in the Section are responsible for establishing and enforcing the Department's overall intellectual property rights enforcement program, including the prosecution of federal intellectual property crimes. In some instances, CCIPS handles the prosecution of intellectual property cases. More frequently they work closely with prosecutors in the U.S. Attorneys' Offices around the country who handle the vast majority of federal criminal prosecutions, both IP and non-IP. They also provide training on IP issues for prosecutors and law enforcement, both domestically and internationally. Other responsibilities include reviewing new policy proposals, legislation, or international agreements related to IP, and providing advice to other government agencies or components of DOJ. The prosecutors also work closely with foreign law enforcement counterparts to coordinate IP enforcement activities around the globe.

While they are committed to fully answering your questions, as Department of Justice attorneys, they are subject to various Federal laws, Department of Justice rules, and ethics rules. They are not permitted to provide legal advice to individual private citizens. This means that there is no attorney-client relationship between CCIPS and Slashdot readers, users, or moderators (and answering questions on Slashdot should not be interpreted as creating one). Therefore, they will not answer questions seeking legal advice. Finally, they cannot discuss ongoing cases, investigations or related hypotheticals.

To learn more about the Department of Justice or the Computer Crime and Intellectual Property Section, visit the following web sites, www.usdoj.gov and www.cybercrime.gov.

Domestic vs. Import

When it comes to the scale of illicit software trading in the US, is there a sense of how much is coming from outside the country as opposed to purely domestic activity? I would think that stemming the international traffic would be much more difficult due to varying legal climates in different countries.

Definition of "Fair Use"?

What is your definition of the term "Fair Use" in regard to any software or music we buy?

Re:Definition of "Fair Use"?

Along the same thought -

I have an extensive record collection and in many cases i also have the same albums on cd.

If i go searching and find all of the music i have on vinyl i'll have downloaded more than enought to have caught your eyes.

Now i have a couple thousand songs in digital that i also have in analog - that which i paid for.

Am i within my rights to have this in both formats?

Re:Definition of "Fair Use"?

If you RTFA, you'd know that this question won't get answered because it constitutes legal advice pertaining to a personal situation, something they cannot do (legally or ethically).

Though he could have phrased it better, no, he did not ask for legal advice on a personal situation. He asked the larger question (again, phrased poorly in a manner that appears personal) of "Do I have the right to download music I already own in some format, specifically, analog?".

However, I have little doubt the DoJ will not want to touch that one with a 10-foot-C&D, since the RIAA would say "no way in hell" but US law says "probably". Mustn't step on the toes of one's corporate masters, after all.

Re:Definition of "Fair Use"?

Not necessarily. You bought the license to the (for instance), vinyl version of the music, not the CD version.

#include "disclaimer.h"
#undef LEGAL_ADVICE

No, I didn't buy a license to anything -- I bought a copy. I have the right to use that copy as a piece of my property: I lack the right to make and redistribute copies of it, since that is the creator's exclusive right under copyright and I have no license (i.e. permission) to do so.

Copyright does not include the idea of a "license to use". It is concerned only with the right (or lack of a right) to make and distribute copies, derivative works, and suchlike. The rights that a creator receives under copyright are rights to restrict others' copying and the making of derivative works -- not rights to restrict others' noncopying use of legally-obtained copies.

Licensure enters the picture only when copying enters the picture. I do not need a license from J. K. Rowling or her publisher to read The Order of the Phoenix. I also do not need a license to take my purchased copy, cut it up, and make paper airplanes from it -- or to lend it to my friend. I would need a license to legally scan it into my computer, make a PDF of it, and distribute it online -- a license that Rowling et al. have no interest in selling me, certainly.

It is trivially simple to debunk the claim that purchasers of copies of media are purchasing "licenses to use" the media: licenses are always explicit. When authors and publishers negotiate the publisher's purchase of rights to a book (a license), that license is written out as part of a contract. The publisher does not simply accept the physical manuscript pages and pay the author (purchasing a copy, albeit the only copy perhaps): an assignment of copyright licensure is in a contract, entered into knowingly by both sides. Thus, if a media purchaser has no demonstrable contract with a copyright owner, no license can be said to exist ... and you cannot unknowingly or unintentionally enter into a contract!

(Further, a license and the violation thereof is not necessary to make copyright violation illegal: it is illegal already, as the default state of works is to be copyrighted. Copyright is not a matter of violation of contract; it is a matter of violation of the law.)

Copyright is really simple: don't copy and distribute stuff you didn't create, without the creator's permission. Trying to complicate things with "licenses" for the common reader or listener is nothing short of villainy.

Re:Definition of "Fair Use"?

"hey, I bought the VHS version of a movie, so I'm entitled to the DVD version now!"

You CAN make a LEGAL DVD copy of your VHS for your own use. I plan on doing this to all my VHS tapes when the price goes down a bit on DVD recorders.

This is entirely different from making a copy of your friend's DVD of "Where Brother Art Thou" because you own the VHS version. They are NOT the same content, even the movie itself is often higher quality.

I showed an "audiophile" associate of mine that he could make high bitrate MP3's of his records that still sounded like a record when played back (that "vinyl" sound is actually distortion, not some beautiful lossless analog magic most record freaks claim). He then spent WEEKS converting his records to MP3. That perfectly legal. If he sells them now though, he must destroy his "backups" (the mp3's).

By the way, you only have to buy a high quality needle etc once when you want to rip your vinyl, then you'll always hear that high quality from that point on.

Oh, and you didn't buy a license. You bought a copy. See "Doctrine of First Sale" in google, or read that other good reply to your own post.

Phrased in a manner that can be answered...

If a person owns a vinyl record, would downloading (via peer-to-peer filesharing networks) the exact same recording and performance in a digital format be considered "fair use" or would it, instead, be a violation of copyright laws?

Answers

Who owns the IP on their answers and are we allowed to distribute then on Kazaa if they do?

Copy protection?

I am aware that companies spend large sums of money on holograms, authenticity cards, product activation schemes, anti-CD-copying schemes, serial numbers and so on. When investigating alleged copyright infringement, do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning? Does copyright infringement go down when companies put up roadblocks like these or do the infringers get away with it nontheless?

The straightforward question

Can you summarize the public good performed by your efforts that a taxpayer, who is neither a stockholder nor employee of the content industry, can realize and should support as a necessary function of the federal government?

Re:The straightforward question

"Can you summarize the public good performed by your efforts that a taxpayer, who is neither a stockholder nor employee of the content industry, can realize and should support as a necessary function of the federal government?"

That's easy. The 'official' answer is that they prevent piracy from eating up companies' profits so that they can continue making programs for 'consumers' to buy. Otherwise there would be no programs.

(Disclaimer: I am saying that that would be THEIR answer, not mine. OSS is truly a lovely concept.)

Re:The straightforward question

Followup to that question... In general what does the pulic gain by the current state of "Intellectual Property" rights? IP rights are supposed to balance protection of authors with certain advantages gained by the consumer. i.e. the ideas from a book are public domain, patented ideas are pubished for everyone to see. The trend in IP, especially when it comes to music, seems to be headed towards a pay-per-view kind of system. From my point of view I see no advantage to the consumer here and feel that rights are being unfairly distributed to corporations.

Re:The straightforward question

Keep in mind that these prosecutors don't write the laws. They just enforce them. Your question would be better directed to a member of Congress.

Re:The straightforward question

Prosecutor: Judge, I would like to now call our "professional expert technology witness", stinky wizzleteats to the stand.

Judge: Who?

Prosecutor: stinky wizzleteats, our "professional expert technology witness".

Judge: Umm, sure, go ahead.

My question to the DOJ

How seriously do you take a question from someone named "stinky wizzleteats"?

Re:The straightforward question

Can you summarize the public good performed by your efforts [...]

This is a good question if answered in earnest, but as it is phrased, is rather easy to weasel out of.

An alternative: The RIAA, MPAA, and other parties with vested interests regularly publish statistics on the effects of piracy. However, a government agency responsible for the enforcement of IP laws should have an independent research arm to gauge the extent of the problem (to decide how much law enforcement resources to invest), and to determine the effectiveness of any particular enforcement action. Who collects your numbers, and what numbers can you publish?

What is the one thing they'd like us to know?

Question I usually like to see answered by anyone:

What is the one thing that people usually don't understand about you or what you do that you wish they did?

What is the one thing in IP laws you'd change?

I would like to ask what would be the thing in IP laws that makes a lot of problems to you or which you consider the most flawed and basically, which parts of the current law you disagree with or would like to change?

Question Submission

Ok, I guess my question would be this: with the ability for everything to be digitized, we are experiencing a revolution or a renaissance of information in which all information can be shared. With this Pandora's Box opened, is it truly possible to keep information from being shared or do they believe that they are fighting a losing battle? In other words, Is this going to be another 'war on drugs' in which money is pumped into a battle that can never be won or do they honestly believe that legislation will be passed that can be easily enforced upon the masses at large?

Re:Question Submission

I guess in could be considered one but the fact is that peoples MOM's now do this. People copy video tapes, record songs off the radio, create mixed tapes etc and no one pays a dime. This is a fact of life and these are ALL considered piracy.

How many people do you think honestly read that beginning to video tapes that says if you copy that video tape, the FBI could fine you and think to themselves 'Gee whiz, I'd better not copy this video tape then'? The number is dwindling.

And as such, this is becoming common place. How can you battle something that is within every houshold without battling the public at large? Technically, this could be considered a troll but at the same time, it is a serious question. I'd like to see if they DO think this is another war on drugs and whether they think it is unwinnable or not. I know their answer but I would like to see if they will give an honest response instead :)

Regarding law-changing:

If we are unhappy with some related current legislation, what is the most effective means for us constituents to work on changing these laws? Is writing our congressmen the only/most effective way or is there something else we can do to have our opinions heard?

Re:Regarding law-changing:

That's easy. You need to pay a personal visit to your congressman, carrying a large bag of "campaign donations".

Definition of Criminal IP Theft/Infringment

I'm curious about the criminal definition of IP Theft and Infringement. It has always been my stance that such items, within reason, should be a matter settled in a civil suit. It is extremely difficult to deprive a party of intellectual property, unlike tangible property. With this in mind, I don't feel there is truly a need for an IP Theft/Infringmenet branch in the Department of Justice.

On to the actual question: Wouldn't the vast majority of cases be handled with the correlated "hacking" or other forms of breaking and entering to steal the property in question, without actually devoting the resources for what is largely a civil matter between individuals or companies? I'm guessing my stance on this comes from a misunderstanding as to what it takes for the government to actually get involved in IP theft/infringement.

Also, I understand that while some companies and individuals do not have the resources to fight IP theft/infringment in court, it seems programs could be setup to assist them. It still seems a large pool of legal resources for what should be a civil matter.

Re:Definition of Criminal IP Theft/Infringment

I'm curious about the criminal definition of IP Theft and Infringement. It has always been my stance that such items, within reason, should be a matter settled in a civil suit. It is extremely difficult to deprive a party of intellectual property, unlike tangible property. With this in mind, I don't feel there is truly a need for an IP Theft/Infringmenet branch in the Department of Justice.

I don't really agree with how you said that.

IP is just a collection of bodies of law, and infringement of some of them is not criminal. Nor is it theft.

What we're asking here is basically whether copyright infringement should be criminalized. And I am asking this. It didn't seem to be important, as far as I can tell, for the first century of the Republic to treat infringement as anything other than a civil matter. If I recall correctly it was not a federal crime until 1897.

Do you think that it is a matter that needs to be criminalized? There are certainly a lot of higher priority crimes out there, and the various industry associations et al are out there all the time suing direct, contributory, and vicarious infringers. Not merely the Napsters of the world, but also music and video pirates (including those offline), and even small time trademark infringers printing up illegal t-shirts. And it is frankly silly to imagine the FBI arresting and the federal government prosecuting someone for building a structure in a manner that infringes on an architect's copyright. But they can.

Why the need then for criminal enforcement? There is no parallel in the world of patents or trademarks as far as I know.

My other question would be:

What reforms, if any, do you think are needed for copyright law; this can include increasing or reducing protection or even the scope of copyright, additional or fewer formalities as a prerequisite for protection, further implementing or leaving international treaties, etc. It can also include revising the code to take care of further developments -- e.g. that 17 USC 511 is bad law after the Seminole Tribe line of cases. If you're concerned about the likelihood of reforms, feel free to address that, but do so seperately, since I'd still like to see what it is that you feel would be ideal.

Simple question

Do you see a distinction between (what I would consider) a true "pirate" -- one who copies and distributes, for profit, intellectual property -- versus a file sharer?

Legality

A lot of noise has been made (in the techie world, at least) about the desire of several copyright holders to enforce anti-piracy laws by taking matters into their own hands; music companies deleting music files off of privately-owned computers, movie studios doing the same thing with movie files, etc. For the moment, this sort of thing is not legal.

My question is: As a lawyer, how do you view bills that aim to legalize this sort of activity? When it comes to "making it legal", is there a connection between letting the RIAA perform 'hacks' that would be illegal for private citizens, and allowing pot to be smoked only by those who have a prescription, or only law-enforcement officers to obtain concealed weapon permits? Is there a danger of reaching a point where we go from "The movie studios can shut down your website if they think you're letting people download movies" to "If you think the neighbor stole your mailbox, you can break into his house to get it back"?

Re:Legality

A lot of noise has been made (in the techie world, at least) about the desire of several copyright holders to enforce anti-piracy laws by taking matters into their own hands;...

To extend this question a bit: If these hacks are made legal, what happens when a legitimate file gets deleted? So far there have been a lot of false positives from the RIAA, so it is likely any sorts of programs that delete infringing files will also delete legitimate ones.

To parallel the above question, if a police officer with a concealed weapon is using it off-duty, or in any non law-enforcement context, they would be in serious trouble. Would the same thing happen to the RIAA/MPAA for deleteing legitimate files, or would they just be considered "casualties of war"?

We don't like your job

But do you? I.e., do you think that the laws as they exist are a) fair to consumers and b) in the spirit of the intent of Copyright Law as it was originally conceived? If not, what would you change?

Laws applicaiton to Interstate

What are their role involving enforcement of US laws on partiees outside the US as opose dto say the efforts of the BSA?

Fair Use

I hear the term "Fair Use" bandied about all the time in these discussions. From a legal standpoint, does it exist? Do I have a right, that will stand up in a court of law, to make a copy of software/music/data for my own personal use?
If I do, does making an "uncopy-able" product violate that right?

Re:Fair Use

As far as I can tell, the term "fair use" is widely misused. "Fair use" applies to your right to quote half a page out of Harry Potter for your criticism of it, or your right to create the DomiMatrix parody of Matrix.

Wether or not you have the right to make any copies for personal use has very little to do with the Fair Use provisions in copyright law.

Fair Use

I'm trying to figure out at what point do you differentiate between "fair use" and "piracy". At what point does "fair use" stop and "piracy" begin? Would letting an immeadiate relative or direct friend make use of a software package be considerered "fair use"? Can you provide an example of what would be considered "fair use" that would contradict the licensing terms of an EULA?

Is the US really powerless?

We hear frequent mention in the press, that most internet crime happens from people outsied the US - Skylarov, the Pakistani who exposed the Passport flaw, open gateways from Asia pumping spam etc.

It is really astonishing to note that the most powerful nation with the best detectives and sleuths can be deterred for so long, by a few novices operating from abroad.

Question:
To control piracy, is it enough that the action taken is within the US, or a global consensus needs to be built up?
You have mentioned the word IP freuently - does it stand for copyright or patents?

Why is the punishment so severe?

It's easy to find cases [sptimes.com] where people get light [polkonline.com] sentences [dfw.com] for crimes that, at least to me, seem much more damaging to society than a few swapped files. How do you justify asking for billions of dollars of so-called damages or years of jail time when people who shoplift some CDs receive little if any punishment?

Suggestion

I don't really have a good question to ask them, but I might suggest that they take a look at the dslreports thread referenced at this link [slashdot.org]. The guy(s) those people are investigating are actually trying to sell other people's software for profit, not to mention spamming people to do it, which is a good deal worse than those who share music at the cost of their own bandwidth.

Oh, I take it back, I do have a question:

How much effort is being spent these days on investigating old-fashioned for-profit organized-crime software piracy, like selling WinXP out-of-the-box at local computer shows, versus pursuing home computer users sharing files over peer-to-peer networks?

Who's to blame?

When talking about a P2P application, who is the one to blame for the piracy? The programmers of the P2P app, or the people who use the application for piracy?

just curious

What does a job/career such as this pay? (Avg. Yearly)

Is this a Type of career that you are basically "married" to your job?

What guidelines do you use ?

Here is a question I have been dying to ask for a long time, but never
got a chance until now for which I thank you and slashdot.

As we all know, laws cannot be defined like scientific formulas, but rather
have to evolve to suit the needs of the society and to adhere to the spirit
of what the founding fathers intended.

My question is this. When you persue, and prosecute intellectual property
cases (esp. related to music industry) what sort of guidelines do you use
here to differentiate between fair use of listeners and property rights of
conglomerates ? Do you follow all cases int he same way ? Are there
references made to the text by the founding fathers and their ideas regarding
balancing soceities need for creativity and owners(not necessarily creaters) need
for profits ? I would like to know what goes on in the closed rooms where decisions
need to be made regarding allocating tax-payers resources to persue cases where
it may not always be clear where the fair line needs to be drawn. Do you ever
get the feeling that not making a good judgement over long period can lead to civil
unrest in digital domain, as has happened before?

Are there times that you personally feel that enforcing a law to its word is unfair
but have to nevertheless enforce it to adhere to the letter ?

What do you think is the future of some of the current IP laws and future proposals
from a law enforcement perspective ? Do you forsee any major obstacles for enforcement of
some of the stricter digital rights laws that are on the table ?

Thanks again,
Too Bad.

What is the biggest threat

In the eyes of the Justice Department what is/are the greatest threat(s) to IP in the US?

Friendly

Value of Goods and Services

do you have any special metrics or do you just use the claims presented by plaintiffs? if you have metrics of your own, how were they calculated?

open Source

How does your Section handle Open Source/Free software licenses? for example how do you check if a FTP server is allowed to distribute software?

Can CCIPS prosecution of people who violate licenses of Open Source software?

Cryptography Laws, etc.

Is there any sense as to the actual guidance of the cryptography export laws? As an American citizen living in the Netherlands, I've been faced with a lot of problems, especially in this area. For instance, I'm legally unable to get source code for projects such as Kerberos (although it's been possible "through other people." I don't get the feeling people take this very seriously, and was wondering what you guys thought.

How do you wish to punish cyber criminals coming from other countries? For instance, if a Dutch hacker cracks a US corporate server (ignoring US/Dutch relations for a bit), would it be possible to prosecute this person? Are there UN regulations for computer "terrorism" (as I'm sure Bush would have it called, ehehe :)

What are your perspective's of Microsoft's Palladium technology and it's legalitites?

How often do internet security cases get tried?

I'm sure I could go on with tons more, but I think this is probably enough.

the obvious question

I know you're not allowed to provide legal advice, but can you clarify this one simple question that's been dragging on all our minds:

Is music piracy theft, or is it just analogous to theft? Or is it analogous to stealing buggy whips?

-a

distinctions

Is a distinction made between different levels of IP infringement?

I imagine that, from a legal standpoint, there should be a different point of view between a student that copies one software for personal use and a blatant thief who makes money out of selling the same copied software.

However, this question has two assumptions:
- The student would not use the software if it was not available (i.e. it is not a lost sale)
- Both activities are infringing (i.e. this question is not seeking to justify the first case)

I think this question is especially relevant since there are reports that the RIAA is now prosecuting students for "infringements" that are mostly gray areas (i.e. the infringement does not seem proven beyond a reasonable doubt, at least to the public).

Reason, Consistency and Change

What do you see as the governing reasons behind the intelectual property laws? And do you find any inconsistencies in reason or effect with the laws as written? Do you see any ways the laws might be changed to make them better? For example, would it make sense for lawmakers to better codify examples of fair use or is this best left in the hands of the courts?

Knowledge

As Law and Technology are two fields with little in common, what kind of real-world working knowledge do IP lawyers have? Do they simply prosecute/defend cases based on what their told by a handful of "experts" or do they actually know how to use the technologies in question. Is there a call for more Engineers-turned-lawyer for cases such as this? I am about to finish my bachelor's in EE, and am thinking of law school. Thanks.

Foreign Agencies

As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US? Specifically Canada but also internationally in general.

Terminology and newspeak

Given that from a legal standpoint (and, many would argue, an ethical one) there is a distinction between "copyright infringement"/IP violation and "theft", what views do you have on the regular and incorrect/misleading application of the latter term by such people as the RIAA and law enforcement? Such misuse of language seems disingenuous, and taints the arguments of those who might otherwise have valid points to make about the morality of misuse of intellectual property rights.

It seems that if there are ethical arguments against piracy and other forms of copyright misuse, those arguments can and should be made on their own merits without the introduction of psychological wordplay apparently designed to confuse the public and cloud the debate. Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?

Why the double standards?

Why is the government so willing to bend over backwards to help copyright holders, yet it does seemingly little to protect individual fair use rights?

As it stands, if I were to break the copy-protection scheme on a CD to make a backup of it for personal use, I would be in breach of the DMCA, even if I had no intention of making an illegal copy of it. Piracy is already illegal, those who commit it are going to do it anyway - this law simply makes criminals of ordinary people.

What sort of background do IP prosecutors have?

Obviously, you have law degrees, but what other degrees or field expertise do you have (such as computer science backgrounds, library degrees, etc.)? Obviously, not everyone is going to understand every single patent out there, but do you handle cases exclusively by what's on paper, relying on the claims of industry experts, or do you provide your own understanding of at least some of the key fields?

Damages

What is the DOJ's position about damages companies claim for copyright infringement? Are they taken as-is, or does somebody verify claims?

For example, say Joan Filetrader has a Metallica MP3 in her shared directory and is eventually prosecuted for copyright violation. It seems like it is standard practice for Metallica's copyright holders to do math like "Well the connection was up for 1 month, and her bandwidth is 8Mb/s, that means that she could have transferred 2,500,000 MB that month, and since the MP3 is 5MB she cost us $10,000,000 in sales."

Does the DOJ review that math and do things like verify what the likely impact on the company's bottom line was?

Answer

This question is answered here [usdoj.gov].

Becoming an investigator

What type of legal training do investigators have?

I'm asking this as a techie who is considering attending law school. What coursework has been helpful to your jobs? What types of internships or other jobs have prepared you for your work? How many of you worked with technology as a programmer/sysadmin/etc. before going into law and/or law enforcement? Any other advice for a techie interested in IP technology law? /ephraim

Triage

How do you decide which case / offenders to go after? Do industries / lobbies have influence? What about congress? What about individual citizens? Can you just go after whomever you have a personal grudge? What kind of checks are in place to monitor the triage process? Who are you accountable to?

What happen to We The People?

Why has corporate profit become more important the Fair Use and a healthy Public Domain? Why is it legal to use copy prevention techniques that will hinder/remove fair use and could stop items from going into the public domain? Why is it legal for the corrupted media giants to continue to pay off the dirty politicians to extend copyright laws? Don't you feel that this creates a perpetual copyright and thus is against the constitution? What US laws mention anything about "IP"? Since when is an idea your property? If you have an idea and share it with anyone, then that knowledge is no longer just your property. It is now information that is stored in my brain as well and no one has the right to remove that from me. Knowledge is meant to be free. If I share an idea with you, I have lost nothing in the process and yet I have enlightened you. Stop the corporate monopolies and greed, remove software patents and restore competition and innovation to the IT industry.

the "lost sales" argument

How strong is the "lost sales" argument that copyright holders usually make when prosecuting "not-for-profit" copyright infringement? Especially when the product is not tangible (software and music, not CDs)?

Although it is often mediatic, any student of accounting will immediately recognize that the number is merely an estimate of available infringing copies, further inflated by the assumption that every copy would have been bought. Both can be easily altered to craft an alarming number.

(Disclaimer: this question is not seeking to invalidate these numbers, but seeking to know how strongly they are considered from a legal standpoint).

How much time and resources

How much of the Justice Department's time and resources will be allocated to the search for pirates? Is there a cutoff point of damages (real or imagined) that an illicit copier would have to produce to even have the matter worth investigating? -- Funksaw

DMCA Anti Circumvention

How do you feel about the anti-circumvention provisions in the DMCA, specifically how they apply to non-copyrighted or public domain materials. It seems to me that this clause has granted corporations an unlimited copyright on any material they publish. This is not only unfair to the consumer, but unconstitutional. IANAL, but you are, so what is your opinion?

Open Source Software Movement

Do you see Open Source Software (Linux, UNIX, BSD) platforms and applications a threat to DRM security? Would you prefer the world be controlled by a more DRM-friendly platform (for greater control over alleged IP infringement)? Or was that all propaganda put fourth by another agency to discredit yours?

determining damages

We often hear that software piracy costs X amount of dollars or music piract costs Y dollars every year. How are those numbers arrived at?

For example, let's say Pete Pirate grabs a copy of Microsoft Office and the latest Brittany Spears album from some site.

Microsoft has a list price of $499 for a full version of Microsoft Office XP Professional. But no one in the history of computing has ever paid full retail price for any copy of office. warehouse.com, about as mainstream as you can get sells it for $65 dollars less. You can get it for much less if you shop around or purchase it as part of an OEM deal.

Similarly, Brittany Spears's latest cd has a list price of $19. No one pays that either.

So did Pete pirate $520 worth of product or $447? That's about a 14% increase in damages.

And what's to stop a company from artificially inflating the MSRP of a product in order to inflate the damages?

Background

Given that as IP lawyers at CCIPS part of your responsibilities is not only enforcing current laws, but also "reviewing new policy proposals, legislation, or international agreements related to IP", I'd like to know something about your overall technical background.

A frequent gripe with the geeks here at slashdot, myself included, is that apparently legislators are not sufficiently well informed to create IP laws, frequently proposing and enacting laws which either constrain individual rights in favor of protecting those of big corporations (like the DMCA), or are simply not effective, because they can never patch the frequently referred to "analog hole" which is always a required step for humans to get to the information.

Given that for ethical reasons, you may not give your honest opinion on said legislation since you are required to enforce them, I'd simply like to know if I can trust that you are sufficiently well-informed to give council on these ever emerging new IP legislations. Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones? Can you elaborate on what type of experience you feel helps to qualify you to truly understand the ramification of these legislations?

Prosecutorial discretion

As prosecuting attorneys, you have the ability (and burden) of choosing which offenders out of thousands of suspects should be pursued by the Federal government.

In some cases this decision is clear cut: the largest and costliest criminals should be dealt with first. But in a lot of cases on your Cybercrime page (notably, some of the targets in Operation Decrypt [cybercrime.gov]) you chose to prosecute a few of the "small fry." The same dragnet that netted convictions for a $14 million offender also snared a few guys who only caused losses of $7000. Interestingly, among the latter persons were some of the most skilled embedded security experts alive today.

So, how often do you target offenders based on pressure from the crime victim, high visibility, high (criminal) intelligence, or other factors not directly related to the crime? And who, besides the prosecutor's office, weighs in (indirectly or directly) on these decisions?

Other sources of IP Violation?

I know that most of the cases involving IP infringemnet that the media gives any attention to are computer related. I feel almost certain that there is noncomputer IP infringement that occurs as well (think corporate espionage). How many of these noncomputer related cases do you get involved in? Why or why not?

Going Native?

Here in Britain, we recently shut down the governemental body that regulated our train services because they were tending to take the side of the small number of contact personnel at the train companies that they dealt with on a day to day basis rather than the side of the faceless multitiude of passengers who they only knew through a few angry mails.

Given that your department will (in the vast majority on cases) be working on behalf of a very very small number of copyright-holding organisations against potentially millions of nearly anonymous file sharers, how will you prevent this 'going native' phenomenon biasing your investigations in favour of people you having a close working relationship with, and how will you defend yourselves against the inevitable accusations that you have 'gone native' and are a 'private police force' for the copyright holders?

Daniel Peng's "MiniNapster"

What is your opinion on the case of Daniel Peng? The internet at large is angry at the treatment of Peng by the courts - many consider sites like the one Peng created to be "common carriers" - that is, all Peng's site did was list the files other users had chosen to put on the academic network to be freely downloaded. Was it his responsibility to ensure that all the files listed on the academic network (which, unlike Napster, was a network he did not operate or design) were legitamate? While he may have been personally involved in pirating files (that is, he may have personally downloaded files to his computer) that was not the focus of the lawsuit. Peng was placed into a legal battle where he had no chance at victory, and as such had to settle out of court. What is your opinion on this case, and ones like it?

IP Abuse

My question is twofold: First, In your workings with IP laws have you run across any particularly staggering shortcomings/ loopholes/ abuses that you were forced to work with/ around? and Second, If you were able to change any aspect of IP law... both how it is applied and how it is regarded/ adhered to... to make the system 'better,' what would it be? Thanks for your time!

Question

From what I have seen the vast majority of your efforts go to protect corporations and companies with vast resources. Can you give some examples where your department has helped individuals or the underdog versus a major company? How about examples where your department has exonerated those falsely accused?

Piracy vs. Sharing

Please provide your definition of Piracy and your definition of Sharing with respect to software and to music.

In the past, piracy was considered the illegal duplication and resale of software for profit. The key word there is RESALE because money was changing hands.

Sharing was just what it sounds like: sharing copies of software -- where no money changed hands -- which was considered a legitimate marketing vehicle by software companies because it gave them an increased market share and propagated proprietary file formats, even though they didn't immediately realize revenues based on a sale. Instead the model was get people to use it and maybe they would pay for the next version of the software.

Now sharing has transformed into piracy through industry campaigns and media (mis)use of the term, even though no money ever changes hands on file-sharing networks like Kazaa and the ill-fated Napster, or when you load copies of the same software package on two computers.

Can you explain this? I don't recall the courts being used to prosecute for sharing in the past, although the practice has now become common.

What is department's (current) limit of "Fair Use"

What is the department's current understanding of the boundary between "Fair Use" and infringment?

For software:
- Reverse engineering: For interface / file format compatability? For workalike replacement? How much can proprietary code be examined? What must be done to stay legal (or at least beyond the interest of the Departmen) and PROVE it?
- Code copying: How much before infringement begins? Is there a clear definition of the boundary if it isn't lines of code?

For music/movies/other entertainment programming:
- Time-shifting: Is it "Fair Use" to capture broadcast programming for listening/viewing at some other time?
- Space shifting? Is it "Fair Use" to make a copy to use in your car, workspace computer, etc.?
- Backup? Is it OK to make a backup copy - provided if you sell the copy or original the other is also transferred or destroyed?
- Sampling for inclusion of snippets in other works? If so, how much is "Fair Use" before "Infringement" begins.

In either software or entertainment programming: Does the department interpret the DMCA or other anti-"piracy" laws as trumping "Fair Use" rights, such that activity that would be legal under copyright "Fair Use" alone is illegal under anti-piracy laws?

In particular: Does the department believe that defeating copy-protection is a crime even if it is only used for activities that would be "Fair Use" if copy-protection were NOT defeated?

I recognize that this is both a matter of policy and court rulings, and that both are subject to change in the future. I also realize that the opinions of the department and the courts may differ - what I'm after is the department's current interpretation of what MAY be illegal and IS likely to result in prosecution by the department.

Regrets at the end of the day?

First, let me say that I would really like to thank you for willing throwing yourselves on the sword before the Slashdot community, many of whom may not be open to hearing your side of the debate.

My question has to do with how you feel at the end of the day. I realize that opinions will probably vary among team members, but I am curious as to how many of you go home at the end of the night feeling regret over your role in prosecution? In other words, do you really believe the laws you are using to prosecute are Just or are you tossing aside your own stake in the outcome ala "The Law is the law"?

To clarify, the phrase "Everyone deserves a good defense" can be applied to the classic example of the defense lawyer who defends someone who they know is guilty of some heinous act.

When asked to prosecute a case, do you consider the long-term, chilling effects a "win" could potentially have on research and development, fair use, etc. and does it leave you feeling soiled or do you honestly believe it is your patriotic or moral duty to prosecute using laws in which you may or may not completely believe? Can you refuse to take a case based on your own convictions or does that equate to professional suicide (at least with regards to your position with the DOJ)?

The Fundemental Difference

Because I have paid license fees for the same music several times, (albums, 8track then cassettes, then Cd's, now going to digital) I have been pleased to see the courts uphold the common-sensical concept of time-shifting and space-shifting. My question is, have you personally ever asked a friend or relative to videotape a show for you while you were out of town and is there some fundemental difference betweeen doing that and downloading an audio only recording of music you have already paid for (sometimes over and over again.)

Who are you hunting most of the time?

Please characterize the types of criminals that you go after. Mostly warez rings? Businesses that don't license all their software? College kids with FTP sites?

I'm sure it's impossible for a group of 40 people to round up every IP criminal. How do you ensure that you aren't ignoring a piece of the pie?

What's legal?

I think one thing that people struggle with is understanding what is actually legal to do with the media they purchase. I'm not talking about ethics, but the actual letter of the law about what I am allowed to do. So to simplify, what's legal or illegal about the following cases:

1) Copying a CD to tape to listen to in my car
2) Ripping a CD to listen to on my computer at work
3) Loaning a CD to a friend
4) Ripping a copy of a CD and giving those files to a friend
5) Ripping a copy of a CD and putting those files on Kazaa
6) Selling copies of the CD

Related to this, how does the volume of these activities influence them? Is it legal to make one copy of a CD for one friend? What if it's for 100 friends? or 500 friends? We can talk endlessly about the spirit of the law and the ethics of it, but the letter of the law is critically important here.

Question regarding the DMCA and copyright terms

If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?

Reverse engineering, and policy question

The world's full of kids of all ages who like to take things apart to see how they work, and engineers who need to find out how things work. There are some open questions about how current law affects them.

What are the department's policies and guidelines about whether an instance of reverse engineering violates intellectual property rights? Would the department consider criminal action against someone who reverse engineered a product if the click-through license said not to?

What factors would the department consider if trying to decide whether a security researcher's work was legitimate?

Does the department recognize a public interest in publicizing flaws in commercial software, even if it involves extracing proprietary information?

Finally, from your personal perspective as believers in the rule of law, what are the top two or three changes you see as necessary in US IP law?

Kevin Mitnick

When Kevin Mitnick was tried, the 'damages' listed in his trial were calculated simply by taking the arbitary value that DEC, et al. attributed to the software he copied, and adding them all together (regardless of any actual damages suffered). This (and being the first big cybercrime case that the Justice Dept. wanted to come out strong against) was a primary motivation in the overly severe (which has been admitted post-trial) sentance handed down. Combined with this, unprecidented media hype to Kevin being held without even a bail hearing pre-trial.

How has the Justice Department's methods of assigning damages, investigation tecniques, and tech savvy (ie. telling the difference between hype and fact) improved since the Mitnick case? And would Mitnick have been tried as severely if he was being tried by today's Justice Department as opposed to the 'wild west' of the computing era?

Causes of Illegal Sharing and Costs of Enforcement

Granted that there is file sharing that violates both the intent and the letter of US law, and that the law should be enforced: to what extent is the "enforcement" of such laws crippled by the behavior of the victims? What do you think of the argument that the ubiquity of illegal file sharing is less a function of the availability of the technology than of an imbalance between the cost to consumer of the works being illegally copied and the demand for those works? Or, by extension, that the artificial limits placed by the copyright holders on the legal distribution of their work (staggered release dates, different pricing in different markets, etc.) encourages illegal distribution to compensate for those limits? At what point does the cost of enforcing these laws become the responsibility of the victims rather than of the majority of taxpayers who do not violate these laws?

Damages

I'm disturbed by the way large conglomerates determine and demand damages based upon projected profits should a product's IP have not been violated and piracy had not occurred.

It's a somewhat flawed argument to claim that $5,000,000 worth of software was confiscated in a piracy raid when off the shelf, at the point of purchase, the software would only have had a $2,000 street value (I'm referring to how much the pirates price the products).

Basic economic theory would point out to you that the lower the cost of ownership, the greater the demand for that product. Even if the retail value of a shop's pirated products had been worth millions, I can't imagine how they would have been able to sell these products that the prices they were pegging it at.

Although piracy is wrong per se, how much in lost profits should a company be allowed to attribute to piracy? I think cases where students from universities are hauled up for file sharing and the penalties imposed on them are totally absurd although the crime is similar (piracy) but the damage, obviously can't possibly be so high.

How does the law make sense of this? How far should IP be protected and would we ever see an end to some of the whimsical claims made by IP owners?

Can the DOJ require proof of "good faith"?

There are specific requirements in the DMCA that plaintiffs must fulfill. Failure to fulfill these requirements invalidates any statement of "good faith" in pursuing defendants. Yet, sites are being shut down which have no content simply becuase a spider program trips over some keywords.

Can the DOJ advise or require plaintiffs to verify the content (as the DMCA requires them to do) before sending out the lawyers? Can they penalize them for failure to do so?

Would it be possible for the DOJ to require plaintiffs to apply for a certificate of good faith or some such document to prevent abuse by the plaintiffs?

AAny suggestions to that effect that might be more feasible if those are too resource consuming?

Why are we paying for this?

The distinction between natural and intellectual property (i.e., rivalrous vs. non-rivalrous goods) makes the case for copyrights/trademarks/patents actually being property pretty thin.

For example, it is at least much more difficult to place prior restraint on and/or proper defenses around music, names, and ideas than on and/or around a house, jewelry, and a car.

I'm not opposed to copyright (and patent, and trademark) protection, and in fact, I think such things are desirable as incentive to produce, although the current copyright term is so ridiculously long as to be an anti-incentive.

However, it is not clear to me that we the public instead of they, the copyright holders, should be paying for the investigation and punishment of violators, especially given the much greater scope of the problem and consequent cost versus the protection of natural property.

After that long-winded preface, my question is therefore: why has the government chosen to make IP enforcement a criminal, rather than civil, matter, given the added costs, both in fiscal and libertarian terms?

Kyle

Constitutional Repugnancy

In constitutional law we occasionally hear reference to the term Constitutional Repugnancy. Under the theory of constitutional repugnancy, laws that are ignored or disregarded by the majority of the US citizenship is repugnant, and they're forth not constitutional.

In your opinion, has copyright law fallen into this area of being constitutionally repugnant, and if not, how far from constitutional repugnancy is current copyright law?

The DMCA

Now that it has been with us for a few years, and doesn't seem to be going anywhere, how has the DMCA (Digital Millenium Copyright Act) affected your job? I would assume that you now see cases of this nature, are such frequent, and how do such cases often go? Is this law really providing for the common good of the people, or is it simply creating more problems than it is solving?
And, of course, what are your views on this law, has it actually helped to slow the tide of copyright infringement, or not? And considering the boundryless nature of the internet, do you expect that a law, such as this, or any IP law for that matter, will be effective for much longer?

Likes, Hates and Language

1. What laws do you least like enforcing?

2. (somewhat related) Do you think IP laws have become too tilted in favor of IP holders? If so, what reforms would you like to see enacted?

3. First, some background: Many people on Slashdot and in the Open Source and Free Software communities detest the phrase "intellectual property". The argument is that IP is not "property", but a privelege granted to holders for the public benefit. I have always contended that the issue is irrelevant because whether or not IP is a "right" it can still be limited. For example, your right to hold land is limited and can be revoked if you fail to pay property taxes. A similar argument revolves around the term "piracy" and "theft" in relation to IP. OK now the questions:

A. Do you agree that legally there is no such thing as Intellectual "property"?

B. If the answer to A is "yes", does it bother you a great deal that an inacurate term is being used to describe a class of laws?

C. Do you think the term "IP" is an Orwellian attempt to control language and create a right that formerly didn't exist? Likewise, do you think "file sharing" as opposed to "piracy" is equally Orwellian but in the opposite direction?

D. Do you think this whole argument is just silly?

E. Does language really change thought, or better yet (since you're a lawyer), do you think it has an impact on laws over time? I have some friends who are lawyers, and they say that a lot of old English words remain in the law because they have established meanings that don't change over time. Be that as it may, is the legal system vulnerable to "newspeak"?

F. Can you suggest some unbiased replacements for "IP", "piracy/sharing", and "theft/(law)viilation"? Better yet, are there obscure words being used by lawyers that might help us if they found their way into the common vernacular?

4. The other end of the spectrum--what laws do you most like enforcing? What gives you the "warm fuzzies" and makes you feel it's all worthwhile?

World Wide Problem

Given that the internet spans borders more easily than any previous technology, what do you expect can (or should) be done to provide IP protection at an international level? It seems to be all too likely that any such attempt will result in a least common denominator set of regulations that grant IP rights along the lines of the strictest rules in any affected country. At the same time there is a risk that IP protections could be used to seriously restrict free speech.

Sklyarov case, lessons learned?

What did you learn about your interpretation of DMCA from the acquittal in the Sklyarov / Elcomsoft prosecution?

help for the little people too?

Will you be enforcing all copyright laws or just those for large corporations with money?

Before you write this off as sarcastic, realize that every major IP corporation at some point or another has knowingly and willfully infringed on other individuals' IP rights. Many of those same CEOs are now trying to restrict legal practices that pale in comparison to the IP "theft" they themselves committed. Several companies "borrowed" IP and resources from the Universities they attended/professored. Microsoft admits to "dumpster diving". Most of the hobby "garage" inventors aquired their materials/computing resource from behind their employers' backs. Will you be actively and agressively presuing those crimes, the details of which are public knowladge?

Also, will you be willing to investigate Open Source license violations, covert or overt. Will we, the small people at Slashdot be able to count on you to investigate the violations we dig up?

Well, will you?

Do you monitor your family?

Have you ever caught one of your family members sharing pirated material?

Purchase vs. License

When the movie studios advertise DVDs, the advertisement always says "Buy it today!" (or "By it [insert-time-frame-here]") or "Your last chance to own [insert-title-here]!".

Yet the movie studios insist that we have not purchased the content, but merely licensed it. It seems that the studios are trying to have their cake and eat it too. Isn't this be a clear-cut case of false advertising? If so, why isn't the FTC cracking down on this?

It just ends up punishing the paying customer

I'm trying right now to register a *BOUGHT AND PAID FOR* MSDN subscription, thousands of dollars already spent, and I'm quite shocked at how un-helpful MS has been.

The package contains a subscription card with an auth key printed on it, and you're supposed to use an online system to do the registration. Well, apparently, someone else has helped himself to my registration key. So I called Microsoft support. They treated me with a great deal of skepticism, insisting that I snail-mail them my activation card, the BOX TOP with the hologram label, and my invoice from the sale. I realized after mailing that, if it gets lost, intercepted, ignored, or destroyed, then I actually don't have any way to get my money back or to get satisfaction -- since I've already sent all the proof of purchase, together with much more personal information than I would have chosen to provide otherwise.

All this, while someone enjoys *my* subscription without being treated like a thief. I should not be the one suffering consequences.

How do you value IP?

Hypothetically, let's assume some one has committed a crime involving the illegal aquisition or distribution of some object under copyright, how then do you determine the damage caused by these actions? Perhaps the most common IP infringement is the trading of music files through P2P. How do you determine the value of these suppossed damages if there are no logs indicating the number of times a song has been uploaded/downloaded?

It seems to me that it is awfully hard to prove how much an individual deed has hurt the IP owners.

Enforcement

How does the government justify essentially allowing Software and Media companies to serve as an enforcement arm for IP law? With corporate protection groups like the BSA levying fines against people who seem to have no legal recourse, the RIAA and MPAA leveling lawsuits against people who are unable to financially defense themselves EVEN when they are innocent, do you feel that your purpose as a government agency is somewhat superfluous?

Kintanon

Protecting Legitimate Traffic

What can be done to ensure that anti-piracy efforts have no adverse effect on legitimate network traffic?

Can sufficient enforcement be done by simply targetting "blatant" infringers who advertise copyrighted material they do not have right for as being available for download by stranger? Or will filters be required to flag "suspect" transfers, and then follow up with a demand for proof that you had the right to transfer that data? For example: How do you differentiate between someone giving away somebody else's music, and somebody transferring their own copies from their home to the laptop while they are on the road?

Are data transfers entitled to a presumption of innocence?

Chain of Evidence

In order to properly present a case you need to refer to certain evidence such as, in the case of P2P piracy, computer files containing music (MP3s). This evidence, as far as I know, is still required to satisfy rules for the chain of evidence in how it was collected and handled. In several cases reported through the media, the stories have indicated that the RIAA or their agents have collected this evidence directly. Computer files can be easily reproduced or altered.

These files can not be validated since they can be easily forged or altered in their computerized format, and the injured party is actually handling this evidence, so how could this type of evidence past muster ? File names and sizes do not necessarily indicate content, so without the critical evidence of the violation (the actual file), how is it that any of these cases can be fairly brought to trial ? How would the rules for handling this evidence impact the small copyright holders - if I find a potential violation, can I just collect evidence myself and try to admit it in court ?


Thanks for helping to all of get the rules straight so that we can better follow them.