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Questions for DoJ IP Attorneys Asked and Answered 641

Posted by Roblimo
from the real-pirates-have-swords-not-computers dept.
These answers are from the lawyers in the U.S. DoJ's Computer Crime and Intellectual Property Section (CCIPS) -- the people who prosecute criminal file-sharing cases. Michael O'Leary, Deputy Chief for Intellectual Property at the DoJ, submitted the answers, but other lawyers in the section worked with him to write them, all under the ground rules laid out in our 'Meet the DoJ's 'Anti-Piracy' Lawyers post last week.

INTRODUCTORY COMMENTS

Thank you all for posing such interesting questions. We have answered nine of the ten submitted questions below, but we are not in a position to answer number ten because it is specifically related to a civil case (that does not involve the Department of Justice). However, in an effort to give you your money's worth, we have answered two additional questions which you posed in the comments accompanying the original interview, but were not submitted to us by the Slashdot moderators.

1) What services for an open source copyright holder - by bwt
First, thank you doing this interview. Most people here take IP very seriously and want laws and law enforcement that do what the Constitution intended.

Contrary to what many lay-people believe, open source software relies (heavily) on copyright and the legal system that assures those rights. In fact, among Slashdot readers are a large number of people who own copyrights to open source software. My question is what services your organization offers in practice to "real people". Our community creates software whose quality competes with that of multi-billion dollar corporations, so we clearly have a significant interest in having our own rights as authors protected. We all have no doubt that if Jack Valenti finds a website selling pirated versions of his movies that law enforcement will descend upon the infringer with a fury comparable to that wielded against drug smugglers and violent criminals.

Few among us would really object to enforcing the law against such a clear violation, however, I cannot help but wonder if there is equity in the system. I wonder whether an individual author's rights as a copyright owner would be similary protected? For example, if substantial quantities of code that one of us has written ends up in a company's product in a way that clearly violates the terms of an open source licence, how would the infringed copyright holder go about seeking your services?

What policy governs your decision whether or not to act on behalf of a copyright owner when a complaint is raised? What assures that the heavy hand of the law protects an individual's rights with the same fury that it defends those of the RIAA or a major software corporation?

O'Leary:
Thanks for your question. The issues you raise are ones that we confront from time to time and we welcome the chance to address them here on Slashdot. In reviewing your question, and many that follow, it appears that some Slashdot readers feel that the Department of Justice only protects the IP rights of big corporations. That simply isn t the case. There is no doubt that large multi-national corporations are often victimized by piracy due in some measure to the popularity and pervasiveness of their products. But at the same time, there are also many others who are victimized, such as small mom and pop operations, and young developers trying to break into a crowded and competitive market. I imagine many Slashdot regulars fall into these categories.

In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).

The prosecutions we undertake do in fact benefit real people. If you look at the people and organizations who have been victimized by the defendants we prosecute, you will see that we enforce the law without regard to who the victims may be and we have protected the rights of victim companies of all sizes.

In one recent case, for example, we prosecuted individuals for pirating a significant amount of high-end application software. There were literally hundreds of victim companies, the vast majority of which were not large corporations. One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further. The earnings of small operations like this are all put back into the business, to defray research and development costs and support further development. They do not have the resources to employ investigators to track pirates or lawyers to vindicate their rights civilly. They simply have an idea and a product a product which was, in this case, pirated and distributed around the world.

In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations. As for reporting potential criminal infringement to law enforcement, the best way to do that is to contact your local FBI office.

2) This won't be taken seriously, but... - by Maul
.... I find it extremely hard to believe that your division truthfully represents the "people" of this country. It seems that your job is to help mega-corporations make "examples" out of college students and others who are too poor to defend themselves.

Yes, sharing copyrighted music and films is a crime. However, I see no justification for the insane penalties associated with file sharing and priacy. It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.

Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?

O'Leary:
Before answering your underlying question, which we do take seriously, let me address what has become a common misconception. The recent cases involving college students were civil suits brought by private parties, such as the Recording Industry Association of America (RIAA). The Department of Justice is not a party to these suits. We enforce our federal intellectual property laws through criminal prosecution, not through civil suits.

Your question argues that the current sentencing structure for criminal intellectual property crimes is too severe and is based upon damage amounts that cannot be supported. First, note that the federal sentencing structure is established by Congress and the United States Sentencing Commission. As federal prosecutors, we work within these guidelines. Second, the sentencing guidelines reflect the serious harm that is caused by piracy. In our answer to the first question above, we gave just one example of a small developer who has been harmed by piracy. That situation is not unique. The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

Further, deterrence is a significant element in criminal sentencing not just in IP crimes, but in all crimes. Until recently, many people believed that piracy was a consequence-free activity and that it did not harm anyone. The sentences that have been handed down in recent prosecutions have begun to change that impression, and will deter others from engaging in similar conduct.

By statute, a person convicted of one felony count of copyright infringement faces up to 5 years in prison (or 3 years, if convicted under the NET Act when the piracy was not done for commercial advantage or private financial gain). However, there are a number of factors that determine the actual criminal sentence a defendant receives, including the volume and retail value of pirated material involved, whether the defendant uploaded material to the Internet, and whether the defendant had a leadership role in a larger criminal organization. Also, a defendant's sentence may be reduced if, for example, he had a minor role in the criminal operation, or he accepts responsibility for his illegal conduct.

The single biggest factor in determining a sentence under the U.S. Sentencing Guidelines is the infringement amount attributable to the defendant. While your question correctly notes this, please understand that neither industry nor the government has the ability to dictate this amount. In determining the amount of damage, the United States must provide evidence of the number and value of the copyrighted works infringed by the defendant to the Probation Office and the court prior to sentencing. The United States must provide evidence to support its position such as evidence of the value of the pirated works infringed by the defendant, the number of times the pirated works were reproduced or distributed, or, in some instances, the amount of money the defendant earned from his illegal activity. At the same time, the defendant may introduce evidence to establish what he believes is the appropriate valuation for sentencing purposes. Neither the U.S. Probation Office, which ultimately recommends a sentencing range to the court in what is known as a pre-sentence report, nor the sentencing judge is bound by the government's claimed damage amount. The government's recommendation for a particular sentence is subject to multiple checks and balances. It is not simply the by-product of numbers offered by industry. We have to support and defend our position in a court of law which is the way it should be.

Finally, while people convicted of intellectual property crimes do face serious consequences for their actions, they are not treated more severely than violent criminals such as rapists. The vast majority of prosecutions of violent criminals take place at the state and local level, not the federal level, which is where DOJ s jurisdiction lies. However, in those instances where there are federal violent crimes, the penalties are more severe than those imposed for copyright infringement. For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

3) Question regarding the DMCA and copyright terms - by rhadamanthus
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?

O'Leary:
I don t believe that the CBDTPA is under consideration in the current Congress, nor are we aware of other pending bills that would mandate the use of digital rights management systems. However, your question seems more focused on the DMCA, specifically the portions of the DMCA that govern anti-circumvention technologies, i.e. Section 1201 of Title 18. For purposes of answering this question, the term DMCA refers specifically to Section 1201.

The DMCA prohibits trafficking (which includes manufacture, sale, distribution, importation, etc.) in tools (i.e., technologies, products, services, devices, etc.) that:

(a) are primarily designed to circumvent,

(b) are primarily marketed for use in circumventing, or

(c) have limited commercially significant purpose or use other than circumventing,

either one of the following:
(1) a technological measure that effectively controls access to a work protected under this title [i.e., the Copyright Act] (see 18 U.S.C. Section) 1201(a)(2); or

(2) a technological measure that effectively protects a right of a copyright holder under this title (see Section 1201(b(1)).

The first type of control above will be referred to as an access control, the second as a copy control. In addition to the restrictions on trafficking, the DMCA also prohibits actual circumvention of access controls (see Sec. 1201(a)).

The DMCA s main purpose is to help protect the rights of copyright holders. However, the DMCA was also designed in part to protect and preserve the rights of people who use copyrighted works. First, the DMCA expressly states that it is not intended to affect limitations on copyright or defenses to infringement such as fair use. Second, the DMCA contains a number of exceptions and exemptions that, for example, allow in some circumstances reverse engineering, encryption research, and certain actions by libraries and certain educational institutions. Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls. As the district court in the Elcom case noted, Congress omitted a prohibition against circumventing copy controls specifically so that users could engage in fair use (and, presumably, to use works that enter the public domain). (See U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111, 1020 (N.D.Cal. 2002)).

Your question deals with how the DMCA might affect works that have entered the public domain. As you know, copyright law grants copyright holders certain exclusive rights, such as the right to copy and distribute their work for a period of time. Currently, the length of the copyright term is the life of the author plus 70 years; for works made for hire, it is 95 years from first publication or 120 years from creation of the work (whichever comes first). After this term expires, works enter the public domain and are presumably available in some form that can be read, viewed, heard, etc., by the public.

While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them.

We have not encountered any criminal case that involved this specific issue. Indeed, we are not aware of a court case either civil or criminal that has addressed this issue directly (although the district court in the Remeirdes case - the 2600 magazine case - acknowledged this issue, but because it was not central to the case before it, the court declined to elaborate).

It is possible that the interplay between the DMCA and access to public domain works will be addressed through rule-making or legislation. The DMCA provides for a periodic review process by the Librarian of Congress, and the issue of circumvention of technological protections on public domain works was one of the issues raised in the most recent review session earlier this spring (See http://www.copyright.gov/1201/).

4) Going Native? - by Andy_R
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?

O'Leary:
You ask an excellent question: how do we, as federal prosecutors, ensure that we retain independent judgment throughout the prosecutorial process? The decision to bring any criminal prosecution is significant and has serious consequences. For this reason, although we work with victims frequently, we work diligently to preserve our independent prosecutorial decision-making authority.

As attorneys for the Department of Justice, our mission is to enforce the laws fully and fairly on behalf of the people of the United States. This is a responsibility we take very seriously. While we work with a wide range of victims, from large multi-national corporations to small mom and pop businesses, the ultimate responsibility for making prosecutorial decisions remains solely with us.

Throughout the criminal justice process, there are checks on how we exercise our authority, including the citizens of the grand jury (who can reject our allegations), judges (who can dismiss charges or rule evidence inadmissible), and ultimately the citizens on the trial jury (who can acquit the defendant). However, even though these checks and balances are in place, from our perspective, it is still our responsibility to maintain appropriate boundaries at all times.

As a result, we try always to exercise independent, unbiased prosecutorial judgment when reviewing cases referred to our office for prosecution. Although you may not hear about it, we frequently decide not to move forward with criminal charges even in instances where the victim wants us to do so. The public doesn't hear about the prosecutions that are declined, only those that go forward. The decision to prosecute or not is a decision based upon a full and independent evaluation of the facts, the evidence, and the law. By maintaining this standard, we work to preserve the integrity of the criminal justice process.

5) Background - by TrekkieGod
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?

O'Leary:
Interesting question. While we are all lawyers at CCIPS, we come to our current positions from a wide range of backgrounds. We have attorneys who have policy and legislative experience. Other attorneys are former Assistant United States Attorneys with years of criminal trial experience. Others came from civil practice before joining the Criminal Division, and a number of us represented technology companies in private practice. Still others have substantial technical backgrounds apart from being lawyers. As a general rule, however, almost everyone in CCIPS is curious about technology and how it intersects with the law. Our interest in technology explains why so many of us are frequent Slashdot readers, and why working at CCIPS sparked our interest in the first place.

One of the biggest misconceptions we confront regularly is that because we are law enforcement we must be opposed to technological innovation. This is simply not the case. The benefits of technology are numerous. We support and enjoy them. Yet, just as law enforcement must conduct itself so as not to unduly limit innovation, so too must we respond when technology is misused for illegal purposes.

Because of our interest in technology and its effect on the laws we prosecute, the attorneys assigned to prosecute IP crimes spend time learning about new technologies as they are developed. This helps us not only keep pace with the latest innovations, but enhances our investigative and prosecutorial skills as well. As your question suggests, you can t determine how (or if) the law applies to technology unless you understand how the technology works. We learn a great deal about technology in the course of online investigations, many of which involve extremely sophisticated technology. We are also trained on an ongoing basis on various aspects of networks and technology in order to continue to develop and refine our skills. Finally, we draw upon the knowledge and perspective of technical experts from the investigative agencies as well as from the private sector.

All of these factors combine to give us a better perspective on the relationship between law and technology. We are frequently called upon to review and consider various legislative proposals. In instances where we are asked to comment on a proposal, we have the requisite technical and legal background necessary to provide a detailed and comprehensive analysis of the proposed legislation. We view providing this type of input as one of our core responsibilities, and we work very hard to stay in touch with emerging technologies for this very reason. Thanks for your question.

6) Terminology and newspeak - by kafka93
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?

O'Leary:
You're correct that words are important, in particular as they apply to characterizations of specific conduct. As you suggest, people with differing views on intellectual property enforcement should be careful not to overstate their case, nor should they do the opposite in an effort to minimize the effects of their conduct.

Traditionally, theft involves taking something from another person without their permission. In short, you deprive that person of their property and they can no longer enjoy its use. Some have argued, particularly in the context of online or digital piracy, that infringement or misappropriation really doesn't deprive the victim of their product because it is merely being copied, so infringement or misappropriation is not truly theft.

As criminal prosecutors, we focus on the conduct, regardless of the label that might be applied. That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft.

In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available around the world, often for free, to anyone with a computer and an Internet connection. In very real terms, even though he retains his property, the digital victim is in a much worse position than the victim of a more traditional theft. To him, the theft is clear and the harm couldn t be more real.

7) Fair Use - by El_Smack
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?

O'Leary:
Great question. The term fair use is frequently misunderstood, and with good reason. The short answer to your question is that fair use does exist. It is an important and longstanding aspect of our intellectual property rights regime. Fair use is a doctrine that holds that although copyright laws grant the creators of copyrighted works certain exclusive rights in their works, the law must simultaneously allow citizens to engage in a degree of copying (or other conduct that would otherwise be infringing in the absence of a fair use doctrine) to allow for such things as comment, criticism, scholarship, and news reporting.

The doctrine of fair use was originally adopted by judges ruling in early copyright cases. Ultimately, Congress incorporated the doctrine into the Copyright Act of 1976, where fair use is now codified at Section 107 of Title 17 of the U.S. Code. In creating section 107, Congress listed four factors to be considered in determining whether a use is fair or not:

(1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

These factors are essentially the same factors that had been used over the years by judges, and Congress's stated intent was to preserve the fair use doctrine as it had evolved. However, as many courts have pointed out over the years, whether something constitutes fair use is very fact-specific. It is difficult to craft a clear, bright-line rule that explains which particular uses of a work are fair use and which are infringement. In short, the exact parameters of fair use are often determined based on the facts of specific cases.

So yes, fair use does exist. Does it allow for some uses of copyrighted works that would otherwise be infringing in the absence of a fair use doctrine? Yes. Does fair use give a user a blanket license to infringe copyrighted works with impunity? No.

Fair use is among the many factors that prosecutors consider when determining whether or not to bring criminal charges. Having said that, however, fair use is not typically at issue in the cases we decide to bring as criminal prosecutions. Rarely do the facts that we would consider for prosecution give rise to a (sustainable) fair use argument by the defendant or defendants although we certainly hear them from time to time. As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.

8) distinctions - by newsdee
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).

O'Leary:
Yes, there are distinctions made between different levels of infringement. Perhaps the most significant distinction is the difference between civil and criminal infringement. Historically, the vast majority of disputes about intellectual property rights enforcement have been dealt with in civil lawsuits, with the criminal law dealing with only a narrow subset of activity. Although there has been increased emphasis on criminal prosecution in recent years, it is still the case that most intellectual property enforcement is civil. The criminal copyright statutes don't allow anyone to be prosecuted unless he infringed a copy willfully, which is the most difficult type of intent to prove. The civil statutes, on the other hand, address infringement even if it was negligent or unintentional. Because we focus on the criminal IP laws, I will answer your question from that perspective.

There are two levels of criminal violations within the criminal copyright code. There are misdemeanors, which carry a prison term of one year or less. And there are felonies, which carry prison sentences of over one year (more on this below).

In general terms, infringement becomes a criminal matter (as opposed to civil) when it reaches a certain magnitude and when the conduct is willful. Within the criminal copyright statutes (17 U.S.C. sec. 506 and 18 U.S.C. sec. 2319) there are thresholds which must be met to trigger potential criminal sanctions. Simply put, these thresholds deal with the quantity and value of the works that are infringed.

Your question talks about the blatant thief who makes money out of selling copied software. This highlights another important area within the criminal law. The criminal statutes make a distinction between for-profit and not-for-profit piracy. Someone who is convicted of piracy for commercial advantage or private financial gain is subject to a felony penalty of up to 5 years in prison. By contrast, someone who infringes for reasons other than commercial advantage or private financial gain faces a maximum penalty of 3 years in prison (under the NET Act). Be aware, however, that the term private financial gain can encompass situations where pirated products are distributed or reproduced for anything of value, including other pirated products. In those instances, defendants will be subject to the 5 year penalty.

As we discussed earlier, there are a number of variables that determine a defendant s sentence in any particular case. However, these are the general distinctions made among various types of conduct which would be considered criminal in nature.

Finally, your question references cases being brought by the RIAA. As we've noted above, the cases filed by the RIAA are private civil actions which do not involve the Department of Justice. Also, you referenced the "beyond a reasonable doubt" standard within your question. In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

9) "... under penalty of perjury ..." - by OWJones
In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(emphasis mine).

Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since

1. It was an mp3.

2. It did have the name of an RIAA-represented artist in the title, and
3. It was at a university.
If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?

I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.

O'Leary:
Your question raises an important point. We feel strongly that everyone should comply with the requirements of all laws. Legal process under the DMCA or any other provision of law should be undertaken with the utmost care and good faith. Failure to do so undermines the credibility and effectiveness of our legal system.

Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.

We are unaware of any prosecutions for violating this provision of the DMCA at this time.

10) Daniel Peng's "MiniNapster" - by Pxtl
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?

O'Leary:
The litigation involving Daniel Peng was a civil matter between private parties. I don't know any more about the case than what has appeared in the public press and other media. Therefore, as I mentioned at the outset, we simply cannot comment. However, as promised, we answered two additional questions which were not submitted to us by Slashdot moderators to make up for not answering this one.

11) Copy protection? - By Jucius Maximus
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?

O'Leary:
Copyright owners have indeed implemented a variety of methods for deterring unauthorized copying or counterfeiting of their works. Software makers in particular often apply very elaborate authentication features to the packaging and media for their software in order to distinguish genuine copies from counterfeits.

In our experience, it appears that many of these methods have been effective at discouraging infringement and counterfeiting. For example, the use of unique authentication codes or serial numbers seems to have helped discourage some copying of software. The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs. And the advanced authentication methods used on software packaging (like holograms, watermarks, and edge-to-edge printing) have made the task of manufacturing counterfeits more difficult. In fact, some counterfeiters appear to have given up trying to beat the software makers at the authentication game, and instead now simply try to steal genuine packaging materials to package their counterfeit discs.
Have these copy-protection or authentication features eliminated infringement and counterfeiting? No, but they have had a deterrent effect.

12) Foreign Agencies - By mitd
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.

O'Leary:
Great question. For too long, people have believed that geographic boundaries shield them from the consequences of piracy. Over the past few years, we have been working to change that belief. The Department recognizes that in order to deal with piracy effectively, we must respond globally. This is true regarding both online piracy and traditional hard goods piracy cases.

CCIPS has made international enforcement a priority. We have a number of tools, both formal and informal, for working internationally, including Mutual Legal Assistance Treaty Requests and Letters Rogatory. We are also able to employ the network of legal attaches stationed at U.S. Embassies around the world to help strengthen relationships with our foreign law enforcement counterparts and help build strong international cases. In general, international cooperation on intellectual property cases is becoming more effective each year. We do work on intellectual property cases with Canada and will continue to do so in the future. We are also currently working on cases in over a half a dozen other foreign nations. Over the past two years we have worked closely with investigators and prosecutors overseas in order to strengthen our own domestic prosecutions as well as support foreign prosecutions. We have traveled overseas to assist our foreign counter-parts and have welcomed foreign agents to the U.S. to learn more about evidence we might have to support their prosecutions.

Our office is currently working with the United States Attorney for the Eastern District of Virginia on the extradition from Australia of Hew Raymond Griffiths, a.k.a. bandido, the former leader of various warez groups, including DrinkOrDie and RiSC. In March 2003, a Federal Grand Jury sitting in the Eastern District of Virginia indicted Griffiths on charges of conspiracy to violate U.S. copyright laws; his extradition is being sought to face these charges. This is the first extradition of a foreign national for online copyright piracy.

Although working internationally is time and resource intensive, it is essential to effective enforcement of intellectual property rights, and we are committed to addressing piracy wherever it occurs.

Addendum:

Thanks again to everyone for submitting your questions. There were some great ones, and we regret that we cannot answer all of them. Thanks also to Slashdot for the opportunity to discuss these important issues. We look forward to additional opportunities to work with members of the online community to ensure that intellectual property rights are sufficiently protected.

This discussion has been archived. No new comments can be posted.

Questions for DoJ IP Attorneys Asked and Answered

Comments Filter:
  • by sbuckhopper (12316) * on Thursday July 24, 2003 @12:01PM (#6522458) Homepage Journal
    In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations.

    Guess he hasn't been keeping up with SCO's new licensing options...
    • Or maybe SCO hasn't tried reporting any individuals to law enforcement for infringement. SCO's just running their mouth off to IBM and the press, but so far no subpoenas have been issued for the developers who allegedly slipped in their code. As of yet, SCO vs IBM is a civil case anyway.
  • by revery (456516) * <charles@nOsPAM.cac2.net> on Thursday July 24, 2003 @12:09PM (#6522542) Homepage
    Most of the questions where I was really looking forward to the answer tended to end up involving civil law. I'd be very interested to see if Slashdot could get an interview with someone from that side of the law.

    Other than that, I was very pleased with the responses we got. They weren't the short little answers I was expecting.

    --

    Was it the sheep climbing onto the altar, or the cattle lowing to be slain,
    or the Son of God hanging dead and bloodied on a cross that told me this was a world condemned, but loved and bought with blood.
    • I'll agree with your sentiment. The answers were well thought out, well laid out, and answers the questions completely (but I did expect it. We are talking about top lawyers, here).

      Civil answer would also be great, but we have to find another source that works on the 'other side' of the fence (not FSF lawyers, but RIAA lawyers).
      • Don't expect them to be civil to this crowd!
      • Just one answer: Billable hours. Very simple. Unlike the DOJ lawyers, the civil lawyers are paid by their clients (i.e. RIAA)solely to bring these lawsuits. The DOJ lawyers have (government) salaries and are not paid by result. An interview with lawyers from the RIAA "civil side" would not be interesting at all. Either they'd come right out and say "we're doing it because they're paying us very well" (unlikely) or they'd just bullshit thier way around any question, using words like "theft" and "stealin
    • Re: Civil Law (Score:5, Interesting)

      by twoallbeefpatties (615632) on Thursday July 24, 2003 @12:21PM (#6522675)
      IMHO, this was the most (unintentionally) interesting thing that he pointed out:

      In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.

      Filesharing is a very grey area of the law right now. By taking cases to civil court rather than trying individuals as more serious criminals, the RIAA would only have to garner the support of half the jury rather than the full 12 (or something like that, I'm not completely versed in civil law). It may be harder for them to win serious precedents in this manner, but it will be easier to win single judgements, which fits their bill of scaring filesharers straight to let them know that they actually could be punished for trading.
      • Re: Civil Law (Score:3, Interesting)

        by Kierthos (225954)
        Civil law requires that there is a "preponderence of evidence", while criminal law requires "behind reasonable doubt".

        Basically, it works like this for preponderence of evidence... If it is more likely then not that a punishable action occured, then the burden of evidence has been met. This is why, even though OJ was found not guilty in a criminal trial, the exact same evidence was enough to sink him in a civil trial.

        Now, it various from jurisdiction to jurisdiction, but in South Carolina, a civil jury is
    • by Otter (3800) on Thursday July 24, 2003 @12:47PM (#6522974) Journal
      Another agreed -- those were clear answers from people who a) know their stuff and b) clearly understand the audience they're speaking to.

      The overlap between questions was unfortunate -- multiple confusions of RIAA civil suits with DOJ criminal cases and multiple "You're on their side, aren't you? Aren't you?" -- but that's a consequence of the ask-and-moderate system.

      As far as civil law is concerned, I'd be happy if we could just get it into the head of the readership that the distinction exists. If we didn't have to read the words "convicted monopolist" in the comments for every single story, it would be a victory.

    • You'll find that most civil cases have gag orders associated with them, plus you would have to track down the legal counsel for all of the companies you want to speak with assuming it wasn't gagged. The RIAA or MPAA is nothing but a Chamber of Commerce for the entertainment industry, they do not normally provide legal counsel for their associated companies.

      However, there are some cases where it seems that the RIAA has banded together in a common class (RIAA v. Verizon) so it may be possible to extract co
    • Other than that, I was very pleased with the responses we got. They weren't the short little answers I was expecting. You were expecting short answers? From a bunch of lawyers?
    • Amazing how a set of lucid answers like these can make your average /. thread look like a bunch of squabbling 2 year olds.

      -a
  • by TWX (665546) on Thursday July 24, 2003 @12:10PM (#6522548)
    you can definitely that lawyers were involved in answering questions...
    • by MaxwellStreet (148915) on Thursday July 24, 2003 @12:24PM (#6522705)
      When balanced against William Shatner's responses, I'd say they average out nicely.

      Aside, this was a great interview idea; and getting something like this would have been really hard without a site of Slashdot's size and popularity. There are a lot of (perhaps legitimate) complaints about what constitutes "news" around here, but this was seriously a great feature.

      Thanks to Slashdot and the DOJ lawyers for making this happen.
    • you can definitely that lawyers were involved in answering questions...

      And you can definitely that proofreading wasn't involved in your post.
  • Penalty of perjury (Score:4, Interesting)

    by henrygb (668225) on Thursday July 24, 2003 @12:13PM (#6522598)
    Reply 9 is interesting. The only part of a notification which can be penalized for deliberate inaccuracy seems to be the part on who the notifier is representing. Do general defamation laws apply to the rest of the notification? Or can I claim to represent myself (true) and that every internet publication infringes my exclusive right (false - in most cases), without fear of punishment?
    • That's how I read has answer. Now I can get the name and address of anyone with a website just by filing a document in court claiming that the person is violating my copyright on "XYZ", just as long as I actually own the copyright to "XYZ". The Justice Department seems to think that this is just fine and will not prosecute you.
      • by Reckless Visionary (323969) * on Thursday July 24, 2003 @01:11PM (#6523305)
        Despite my sympathy for your point, why would the Justice Department prosecute you for something that's not against the law? It's not their fault they wouldn't prosecute that, it's perfectly legal. Your point is better directed to your legislature.
    • by Kintanon (65528) on Thursday July 24, 2003 @12:45PM (#6522951) Homepage Journal
      I thought that was interesting too, because technically there was a violation of the perjury clause there. The RIAA claimed to be authorized to act on behalf of the copyright holder of that specific MP3, when in fact they were NOT authorized to act on behalf of the copyright holder. Isn't that precisely the situation that the perjury clause is designed for?

      Kintanon
      • by dr_canak (593415)
        I don't know,

        but it is an interesting point. I have no idea who the card carrying members of the RIAA are, but it could very well be the case that publishers are. And through recording contracts with artists, they allow for the RIAA to be the spokesperson for the protection of their property. Ergo, the RIAA can speak on behalf of all artists who are currently under contract with the publishers who themselves are associate members of RIAA.

        just a thought?
        jeff
      • First, it's important to note that the copyright holder is the record label which holds the copyright, and not the artist whose name is on the album.

        The RIAA is a trade union, and as such has certain powers granted to it by the labels which have created it. I'm sure that this is one of them. It's much better for these companies, PR-wise, to sue and subpoena under the guise of an industry lobby group than that of their own corporate moniker.
  • by Anonymous Coward on Thursday July 24, 2003 @12:14PM (#6522605)
    The lawyers dont come across as black hearted bastards but people who are truely passionate about the field they work in and seem to want to make a diffrence.
    • "The greatest trick the Devil ever pulled was convincing the world He didn't exist."

      - Verbal Kint

    • by Monkelectric (546685) <slashdot@@@monkelectric...com> on Thursday July 24, 2003 @02:39PM (#6524322)
      The lawyers dont come across as black hearted bastards but people who are truely passionate about the field they work in and seem to want to make a diffrence.

      I think he still missed the point though. I think people are unhappy that a handfull of companies control music, movies, video games, television and news. And these companies are determined to provide the least usefull solutions and the least value to their customers.

      How many times have you bought a DVD only to have several special edition versions issued later? Why not pirate the dvd now, and wait for the special edition? I have several DVD's which have died of "dvd rot". What is the Warner Brothers solution to this problem? Go buy another one!

      The XBOX modding situation -- Emulation and XBOX Media Player on the xbox are *killer apps*. Yet people are *GOING TO JAIL* for selling chips which let you do this? Why doesn't Nintendo sell all their NES games on a cd with an emulator for 60$? What a killer app that would be!

      Bush gutted the Microsoft settlement, and the issue of their massive financial fraud [billparish.com] is still unaddressed.

      Lastly, price fixing and payola, by the music industry is legendary, and what was the remedy? A 15$ rebate for people who were affected?

      Piracy is an expression of peoples disatisfaction with the current state of affairs. But instead of fixing the *cause of the problem* these companies have convinced everyone that the nasty pirates are the problem, when they aer infact the symptoms of a broken system.

  • Question #9 (Score:4, Insightful)

    by rhombic (140326) on Thursday July 24, 2003 @12:15PM (#6522618)
    What I want to know is, why hasn't there been a prosecution for violation of the perjury clause of the DMCA on the Usher lecuture? It seems pretty cut and dried-- Professor Usher obviously never authorized the RIAA to act as his agent, and whomever issued the takedown letter swore under penalty of perjury that they were acting as his agent. So why hasn't this ended up in court?
    • Clever, but a little too cute. This was obviously a case of mistaken identity. If it was a rival professer that was trying to get the Usher .mpg taken down THEN it would have been a criminal purjury case.
      Professor Usher DOES probably have recourse in civil court though.
    • Come on , this is insightful? The parent poster clearly didn't read the answer.
  • by revery (456516) * <charles@nOsPAM.cac2.net> on Thursday July 24, 2003 @12:17PM (#6522631) Homepage
    Our interest in technology explains why so many of us are frequent Slashdot readers

    They're Slashdot readers?!? We're doomed....

    --

    Was it the sheep climbing onto the altar, or the cattle lowing to be slain,
    or the Son of God hanging dead and bloodied on a cross that told me this was a world condemned, but loved and bought with blood.
    • Re:We're doomed.... (Score:4, Interesting)

      by Telex4 (265980) on Thursday July 24, 2003 @12:22PM (#6522686) Homepage
      Our interest in technology explains why so many of us are frequent Slashdot readers


      They're Slashdot readers?!? We're doomed....


      All of a sudden I feel less secure in my smug "IANAL but..." comments ;-)
    • Yeah, but being lawyers they post like this:

      "Notwithstanding the possibility of a third party or several third parties having already done so without the knowledge of this contributor, First Post. This post comes with no warrantee whatsoever and read at the the reader's own risk, including, but not limited to, eye-strain, boredom, suicidal rage and scabies."

      J.

  • by Anonymous Coward
    Re: That link to those questionable binaries from that article last week

    It wasn't me. I didn't do it.

    -- A. Coward
  • If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further.

    The question is whether piracy affects everyday people who are trying to drive companies *out* of business. (Companies such as Microsoft.)

    -a
  • breaking the law (Score:5, Interesting)

    by evenprime (324363) on Thursday July 24, 2003 @12:18PM (#6522643) Homepage Journal
    O'Leary said: We feel strongly that everyone should comply with the requirements of all laws.

    I think that's the key here. As has been pointed out [slashdot.org] before [slashdot.org], most file sharing, CD burning, etc. goes on because the public believes that they somehow have a *right* to a song or a movie without paying for it. That's just plain silly.

    Ignoring the law just because it is inconvenient is wrong. O'Leary was incorrect in stating that *all* laws should be obeyed - the civil rights movement was an proper form of law breaking - but "because I want this" is not a valid reason to break the law.
    • by Anonymous Coward on Thursday July 24, 2003 @12:26PM (#6522729)
      So you think we should have all been nice polite british subjects a few hundred years back and happily paid for our stamps and tea and all the other "good laws" of George the III?

      Immoral laws can never be tolerated by an educated population, and there is nothing as immoral as claiming to own others, whether in physical or intellectual slavery. The mis-application of copyright as if property is as such immoral.

      • by jratcliffe (208809)
        First off, claiming that enforcing copyright law is tantamount to slavery is disgusting. You're probably one of those people who bandies the phrase "Nazi" around casually. Secondly, people certainly should feel free to resist or ignore laws they view as unjust - they shouldn't be surprised, however, if they're punished for violating them. The leaders of the civil rights movement understood that they were breaking the law, and that breaking the law has consequences; they were willing to accept those conse
        • by zenyu (248067) on Thursday July 24, 2003 @06:19PM (#6526862)
          The leaders of the civil rights movement understood that they were breaking the law, and that breaking the law has consequences; they were willing to accept those consequences.

          Martin Luther King Jr. understood that he was breaking laws when helping black people vote. He understood the consequences, but I think it is going a bit to far to say he accepted them. I think he was angry and felt that he was unjustly held for disobeying immoral laws. Read some of his letters from behind bars, he did not accept that the state had the right to enforce these laws against being black.

          I think it would be best if we had some kind of compromise that kept copyright in existance, such as a 2-5 year term and reasonable penalties for infringent, like you get for disobeying the speed limit to various degrees. I think I should be able extract a significant settlement from commercial infingers and perhaps some portion of the fine levied on no-commercial infringers of my copyrights. No one should lose all their savings or their company or much less go to prison. But barring this sort of compromise I totally understand those making the arguement that as currently enforced these "IP" laws are as bad or worse than slavery. Especially patents, for obvious reasons, but copyright can as well effectively block unaccepted speakers from legally engaging in speech that addresses topics discussed in the last 150 years, as the reference material is all locked away. Barring a compromise we are much better off without these restrictions on ideas and other forms of discussion and thought at all.

          BTW Can any lawyers argue whether conflicts between the first amendment and the copyright clause can be said to favor the first amendment? My understanding is that the bill of right came later in response to fear of the over-reaching power grab the states thought the constitution granted to the federal government. Couldn't the first amendment be interpreted with respect to the copyright clause as the 21st amendment is to the 18th (Alcohol). Right now I wouldn't make the arguement before the court, but if the corporate copyright holders over reach I think the reaction might be to see copyright as an uncompensated takings of property by the government that is given to a private monopoly in contradiction to its oblication to promote trade and in contradiction with the common good. In that climate the court might be emboldened to take a closer reading of the constitution. I think they would at the very least find the framers did not intend to set up the current system of heretitary ownership to the expression of ideas.
    • I think people would be much more inclined to respect the laws if it were the artists themselves pressing the charges against people and stepping up to remand piracy stops instead of the RIAA which doesn't serve any purpose other than to litigate. If I hear the artists themselves screaming about losing money then I might care. When I hear a big corporation telling me to stop copying stuff when they themselves aren't the ones creating the music, then it does nothing more than piss me off. And by artists scre
    • Not as simple. (Score:4, Insightful)

      by GoofyBoy (44399) on Thursday July 24, 2003 @01:04PM (#6523209) Journal
      >but "because I want this" is not a valid reason to break the law.

      There are lots of things which can be classified as "I want" such as
      "I want the right to vote for representation"
      "I want the ability to get married to someone of a different race or culture"
      "I want my child to live in a place where he can worship the religon he wants to"
    • by Anonymous Brave Guy (457657) on Thursday July 24, 2003 @01:49PM (#6523790)
      As has been pointed out before, most file sharing, CD burning, etc. goes on because the public believes that they somehow have a *right* to a song or a movie without paying for it.

      I don't think that's true. Most people who rip things known damn well that they have no right to do it. They do it because they think they can get away with it. There is no ethical dimension here, it's just pure greed.

    • Virtually everyone in law enforcement takes the statement " We feel strongly that everyone should comply with the requirements of all laws" as a basic part of the world view - much like a christian or jew would take the 10 commandments. Law breakers == evil, law obeyers == good.

      I don't feel that way and doubt the majority of people feel that way if they really thought about it. The civil rights point that you mention is a good example, but it trickles down much further than that.

      "Obey the law" is one half
  • Best interview ever....

    -Sean
  • Agreed (Score:5, Insightful)

    by aptenergy (688428) on Thursday July 24, 2003 @12:19PM (#6522648)
    Agreed. If some of those lawyers are indeed avid members of Slashdot, I'd like to hear their personal opinions on 1) The RIAA 2) The MPAA 3) SCO I would have also liked to hear what they think about the RIAA having permission to issue subpoenas without having to ask a judge. Doesn't this give control of the judicial system to a multimillion dollar corporation who has no interest in justice, but rather profits? Or am I barking up the wrong tree here?
    • Re:Agreed (Score:2, Insightful)

      by MilesBehind (517130)
      I think our gracious lawyer friends are too smart to do something like that. They're lawyers enough to know not to put their opinion on this lair of seething resentment that is slashdot. Being a reader does not neccessitate being a contributor, since any opinion they state could be taken as the opinion of the DoJ, which would get them in a load of trouble.

      I'm sure they get a good chuckle out of all the clueless IANAL posts, tho.
  • by kasparov (105041) * on Thursday July 24, 2003 @12:19PM (#6522658)
    It seems strange that we, as a people, would allow laws to become so complex that even the attorneys (who have been specifically trained in the law) would have trouble giving a specific "bright line" definition of when something is Fair Use, or not. How can a layman ever know if he is breaking the law if an attorney can't even say when a "line has been crossed"?
    • I'm not sure it can be helped, really. Some situations cannot be definitively described. This is why much of the law depends on precedent (decisions made by courts) to provide interpretation of legislation. Legal systems never become less complex. There is a game called Nomic (or Agora or a number of other variants) that demonstrate this quite well.

      And really, given the complete lack of knowledge some legislators display, we we really WANT them to try to draw a "bright line?" I'm sure that won't end well.
    • That's just how the law works. There are a whole bundle of things--like whether a particular work is derivitive of another or not--that are amazingly grey areas.

      Pay for legal insurance, and when you have a serious question, go ask. The first step in most grey-area cases is an attempt at non-litigous settlement--when you get a C&D, decide if you want to fight or not; if not, you may get off with nothing more than an agreement to not do the grey-area thing anymore.

      In general, follow the laws you know
    • Hi!

      It seems strange that we, as a people, would allow laws to become so complex that even the attorneys (who have been specifically trained in the law) would have trouble giving a specific "bright line" definition of when something is Fair Use, or not. How can a layman ever know if he is breaking the law if an attorney can't even say when a "line has been crossed"?

      It isn't because the law is needlessly complex--it is because humans are immensely complex. There is a seemingly infinite number of ways in w

  • by Lord_Dweomer (648696) on Thursday July 24, 2003 @12:21PM (#6522682) Homepage
    Perfect spelling.........AND they read slashdot. We could all learn something from the DoJ lawyers.

  • Well, I'm glad you asked that question

    That's an interesting question

    You're quite right

    I liked the answers, and the fact that they pulled out 2 questions to answer from the unsubmitted ones. All in all, though...... smooth and political. The people involved in large legal issues like this are professional and capable, it's funny how different it can be to the slightly more... emotional opinions to be found on slashdot.

    It's interesting that these two different worlds are engaging in dialogue
  • by bigpat (158134) on Thursday July 24, 2003 @12:26PM (#6522731)
    " While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them." ... so you have a legal right to copy stuff but the ability to do so is illegal. Like saying you have freedom of speech, but it is illegal to open your mouth. Thanks.

    • by Telastyn (206146) on Thursday July 24, 2003 @01:03PM (#6523183)
      No, that means that whomever writes the copy control removing tool cannot sell/transfer the tool. They *CAN* use it, and then sell/transfer the work which is now beyond the scope of copyright.

      Furthermore, if the copy protection mechanism only protects that work, or only works that are no longer under the protection of copyright, you can traffic in a tool to remove them, as the DMCA only applies to tools who's primary purpose is to remove copy protection on copyright protected works. [and debatably, even if the copy protection mechanism still exists on copyright protected works, the tool can be traded, as it can be argued that the tool's primary use is on the now public domain works which happen to have that copy protection mechanism]
  • by realdpk (116490) on Thursday July 24, 2003 @12:26PM (#6522734) Homepage Journal
    For example, as mentioned, the *maximum* sentence you can receive for one count of copyright infringement is 60 months, while the *minimum* for someone convicted federally of aggravated sexual assault is generally between 70 to 87 months.

    So two counts of copyright infringement > aggravated sexual assault? How many counts of copyright infringement does it take to hit the maximum for aggravated sexual assault? 10? 20? Copyright infringement counts can add up pretty quick.
  • In some instances, piracy can actually be more damaging than traditional theft. Unlike traditional theft, where a person steals a specific number of tangible objects, one product in digital format can alone be used to generate hundreds of thousands of near-perfect digital copies within hours. In the case of software piracy, for example, the developer has not been deprived of his product in the traditional sense it has merely been copied. Yet, he faces the grim reality that his product is now available aroun
    • The problem is... (Score:5, Insightful)

      by BitwizeGHC (145393) on Thursday July 24, 2003 @12:49PM (#6522987) Homepage
      The problem is that until recently, theft had a specific, legal meaning: taking possession of property while depriving the owner of same. Look it up, it's in black's Law Dictionary.

      If depriving someone of money they expect to make constitutes theft, then theft suddenly becomes expanded to ancompass a range of things. Blocking banner ads is theft. Skipping commercials is theft. (Remember the Turner Broadcasting guy?) Buying only sale items from a supermarket is theft. Sure, you bought and paid for every item, but you're still stealing: you're stealing the money they expected to make by selling you more items at full price than you paid for on sale.

      And no, IANAL.
    • Simply put in order to "steal" a copyrighted work I would have to 1) take a copy in order to make more copies, and 2) disable the original owner's ability to make copies (for example by destroying his copies.)

      Just distributing unauthorized copies usurps the rightful owners copyright, but does not prevent him from making and selling legal copies.

      In the interview, I believe the DoJ lawyers are trying to make the argument that pervasive (digital) availability is equivalent to disabling the original owner's a
  • The entire thing was mostly a long winded way of saying 'we are coming to get you, little people', and 'get used to it, as this fight to take away your freedoms and privacy has only begun'.

    • Actually, they mentioned numerous times that most of what they deal with are extremely serious offenses where the copyright holders intellectual property is quite obviously violated. If you actually read the thing you'd have noticed that they're not to blame for the attacks on the "little people." Those matters are settled in civil courts, not criminal courts.
  • I suspect we'll be hearing a lot of slashdotters complain about these answers. A lot of them sound like pretty standard party lines and canned answers. Let's be honest here: they're representatives of a large bureaucracy, not policymakers. There's no other answers they could have given.

    However, this interview was not a total wash. In particular, I found the fact that they consider the copyright infringement of music downloading to actually be honest-to-Congress theft to be very fascinating and intrigui
  • Paid for? [OT] (Score:2, Interesting)

    by ldspartan (14035)

    However, in an effort to give you your money's worth, we have answered two additional questions which you posed in the comments accompanying the original interview, but were not submitted to us by the Slashdot moderators.

    Did anyone else pick up on this? If so, does /. pay for these interviews, or is the interviewee just using a common turn of phrase?

    Not that it matters terribly, but I think it would add to the context of these things if we knew that slashdot paid for interviews. -- lds

  • by divec (48748) on Thursday July 24, 2003 @12:35PM (#6522831) Homepage
    The O'Leary writes:
    One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further.

    This doesn't show that the business has lost out due to piracy. There has only been a loss if someone who would otherwise have paid for a legal version has instead obtained an illegal copy.

    That might well have happened in this instance. But it's important not to just assume that there's been a huge financial loss, and severe adverse effects on this Midwest business, merely because, say, 100 illegal copies have been downloaded.

    If only two of the downloaders would ever have paid the price for a licensed version, then all that has been lost is the price of two licences. The other 98 downloads have done no financial damage - sure, they're illegal, and you might well argue immoral too, but they haven't affected the business's income at all.

    The same thing happens when someone releases a piece of free software, sees that he has 100 users, and thinks, "Hey, if only I'd made it proprietary and sold licences for $50, I could have made $5,000". In both cases, it's quite possible that 98 of the 100 would never have even considered paying a fee for the software.

    • by Merk (25521)

      In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

      This paragraph convinced me that their view is completely different from mine, and that to me at least, they "just do

    • by blunte (183182) on Thursday July 24, 2003 @03:56PM (#6525151)
      The other 98 copies actually serve to improve the visibility of the software. In a strange sense, they're gaining marketshare thru the illegal distribution of their software.

      It's actually similar to companies selling their items at a price way below cost, or even giving those items away, in an effort to gain marketshare. Then once you have a bigger market, you find ways to get that bigger market to pay you.

      There are lots of examples of this behavior. Sometimes it's even illegal as a company to give your products away like this.

      The only difference here is that the company that wrote the software didn't choose to release it for free. That doesn't mean they're not actually helped by it being out there. Speaking of which, I wonder how many copies of Photoshop Adobe could sell if they priced it "reasonably"? I wouldn't think twice about paying $150 for a full version. But since they don't get the clue, other companies like Jasc Software created a great product, PaintShopPro [paintshoppro.com] (which costs about $100) to fill that void.

      Besides all of that, what if DRM were able to keep copyrighted music from being heard by anyone but the person who purchased it? How many albums would be selling then? Imagine this conversation:

      Buyer: Dude! Check out this new Fluff Girlz album I just got! It's really great, you should go buy it. They start out with some guitars, and then they start singing. And in the second track, they have a saxophone playing. It's really choice.
      Friend: Can I listen?
      Buyer: Sorry dude, nocando. But here, check out the album art.

      It's the "free" distribution of music, via audible sound waves, that generates interest, and causes people to buy music. In much the same way, free copies of software help build interest, which can lead to sales, assuming pricing is reasonable.

  • by Elwood P Dowd (16933) <judgmentalist@gmail.com> on Thursday July 24, 2003 @12:38PM (#6522855) Journal
    The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

    Well, I guess it's codified in law. This is why Kevin Mitnick got charged with doing billions of dollars of damage. I wish we thought of asking them about the legitimacy of calculating damages by multiplying the number of copies and the suggested retail value of the stuff being copied.

    Er, not the legitimacy, (Apparently it's legitimate.) but rather the morality. Doesn't there have to be a more realistic manner of calculating damages?
  • by Daniel_Staal (609844) <DStaal@usa.net> on Thursday July 24, 2003 @12:42PM (#6522906)
    In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).

    That sounds fair, until you think about it:

    When is proscution going to be the most of a detterant? When it is publicised. And it is the big businesses that will publicize it.

    When will prosocution lead to finding more cases? When there are multiple products being infringed on, or there are large networks of products. Again, this favors 'helping' big business because they are the ones who have large product lines, and who have spread their demand over a large area.

    The criteria aren't totally flawed, of course. They just have more of a bias then is immediately obvious.

  • by Bob9113 (14996) on Thursday July 24, 2003 @12:43PM (#6522921) Homepage
    While a court could find that the DMCA allows the circumvention of protections on works in the public domain, the statute nonetheless prohibits trafficking in tools intended for use in circumventing controls on protected works. While those same tools could potentially be used to remove access or copy controls on works in the public domain, it may still be unlawful under the DMCA to traffic in them.

    The answer is clear then. From now on all circumvention tools must be marketed as "intended for use only on works which have entered the public domain".

    This is exactly the same way in which a lawyer can give you legal advice and say, "this is not legal advice" and have no liability. It's the same way in which herbal supplements stay, "Promotes Alertness (this claim has not been verified by the FDA)" and get past FDA labelling restrictions.

    That is, it is not about acting within the spirit of the law - that would be true if we had a common law system. It is about acting within the letter of the law.
  • by bentcd (690786) <bcd@pvv.org> on Thursday July 24, 2003 @12:44PM (#6522933) Homepage
    In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars.

    The way I read this, the means used to calculating the final value is something along the lines of adding the retail value of each of those 20,000 titles for the total. This method seems a bit suspect. I wonder, if I made a piece of semi-useful software, put a $1mill price tag on it and made sure it was reasonably easy to pirate, could I just wait a while and then start successfully suing anyone who copied it for everything they've got?

    I can't help feeling there needs to be some sort of independent agency that would assess the actual value of pirated goods. The copyright owners are clearly biased and I doubt most courts have the competence to do it.
  • Interesting but... (Score:3, Interesting)

    by Raindance (680694) * <johnsonmx@g[ ]l.com ['mai' in gap]> on Thursday July 24, 2003 @12:46PM (#6522961) Homepage Journal
    Interesting answers- these guys seem like they've thought out a great deal of these issues.

    However, did anyone else notice they still use words such as 'piracy' and 'intellectual property' instead of more conceptually correct words such as copyright infringement or copyrighted work?

    I have to think that unfortunately this office is still largely a tool for and of the copyright mafia, if these are the terms they think in.
  • by yakovlev (210738) on Thursday July 24, 2003 @12:48PM (#6522982) Homepage
    Our office is currently working with the United States Attorney for the Eastern District of Virginia on the extradition from Australia of Hew Raymond Griffiths, a.k.a. bandido, the former leader of various warez groups, including DrinkOrDie and RiSC. In March 2003, a Federal Grand Jury sitting in the Eastern District of Virginia indicted Griffiths on charges of conspiracy to violate U.S. copyright laws; his extradition is being sought to face these charges. This is the first extradition of a foreign national for online copyright piracy.
    Although I don't know all the details of this case, this description seems like the case is setting a disturbing precedent. I don't like the idea that I can break another country's laws while sitting in my own living room, and that that country can then have me extradited from where I live, without my ever setting foot on their soil. This sounds a lot like the Skylarov case, only in this one they're extraditing him without his ever coming to the US.

    It's one thing if the US attorney's office says "hey, we noticed that this guy is committing crimes in your country, and you might want to prosecute. Here's some evidence." It's quite another to say "this citizen of yours is doing what is considered a crime in our country, and we want you to hand him over to us for prosecution."

    • this citizen of yours is doing what is considered a crime in our country, and we want you to hand him over to us for prosecution

      er, the extradition would never happen if both countries didn't agree that the offense was in fact a crime.

      also, just because a crime is done in a virtual space doesn't mean you can't be hunted down and tried in real space. if geography doesn't matter on the internet why should it matter in the real world?

  • Is it just me (Score:3, Interesting)

    by Laur (673497) on Thursday July 24, 2003 @12:50PM (#6523010)
    or did anyone else feel like they talked a lot but didn't say much? (Lawyers, I know)

    This isn't surprising to me since most of the really interesting stuff is occurring in civil law, not criminal. These guys mostly go after rampant piracy for profit (i.e. large software counterfeit rings and such).

    From question #7:

    As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied.

    I was hoping that they would clarify whether it was legal to circumvent the copy protection to exercise fair use rights. They mentioned in question 3 that the DMCA contains fair use exceptions but this seems to be a legal gray area. Is it legal to use DeCSS to watch legally purchased DVDs on Linux? Is it legal to hack copy protected CDs to rip them to mp3s (for personal use)?

  • by Rogerborg (306625) on Thursday July 24, 2003 @12:54PM (#6523064) Homepage

    Meh. No answers to the big issue:

    Copy right was intended as a tool to achieve a goal. The explicit goal was to encourage creators to make their work available to the public, by allowing them to profit from it. The profit is the tool, not the goal.

    So, at what point did US.gov forget that? When exactly did it become a crime to "steal" that potential profit, rather than a crime to run cartels that operate to keep creator and recipient apart and to keep that work exactly as expensive as the market will bear? Hmm?

  • A few thoughts... (Score:3, Interesting)

    by gr8_phk (621180) on Thursday July 24, 2003 @01:03PM (#6523188)
    Some things stood out for me:

    They claim to have prosecuted a case for the little guy, but only cite one case where there were several parties (including big ones) being affected.

    Even after the question about terminology and agreeing that some terms are more accurate than others, they like to use the word pirate. In the last answer we have "This is the first extradition of a foreign national for online copyright piracy". Note it's not "copyright infringement", but the more evil sounding "pirate".

    While they refused to answer questions about a specific case, they finnish up by talking about an ongoing extradition in a specific case.

    Very good answers to very good questions. I just saw a few things that seem a little off.

  • by snopes (27370) on Thursday July 24, 2003 @01:06PM (#6523236) Journal
    I'm not going to get into a nitpicking about speration of private and public (government interests), but would just like to provide this one fact to folks here. I happen to directly know an RIAA investigator. He doesn't participate in P2P or other strictly online cases. His focus is on large scale piracy operations (i.e. overseas manufacturing of conterfeit media). My point, however, is that he, an employee of the RIAA, participates in FBI raids of suspect facilities. He's there representing the RIAA's interests, not the public's. I'm sure FBI folk could go on about how these collaborations are handled to ensure ethical work, but the truth is he's there standing next to the enforcers, pointing his finger, and pressing the RIAA's case before the suspect even has a chance to cry "lawyer".

    Large, moneyed organizations do get special treatment by the US federal government. To try to argue otherwise is ridiculous. Similarly it's a waste of effort to try to get them to stop. In this case the claimed issue is that they need an expert on the scene to identify the infringing materials and the FBI can't be expected to provide that expert. What I'd like to know, and my apologies to all for not posting this question in response to the initial RFQ, is how does the DOJ and it's enforcement arm, the FBI, ensure the individuals and groups within their departments are acting ethically and not being influenced by these private organizations? Are ther eductaional sessions for investigators working hand-in-hand with private organizations? Are there established, departmental penalties for unethical behavior which may not technically be illegal?

    Maybe we'll get to interview the FBI next?
  • Fair Use (Score:5, Interesting)

    by Gunzour (79584) <slashdot@noSpAm.tycoononline.com> on Thursday July 24, 2003 @01:09PM (#6523271) Homepage Journal
    Assuming the definition of Fair Use which they quoted is corrected, it's got nothing to do with personal use, which is surprising to me. Based on their definition, Fair Use does not cover:

    Timeshifting for personal use

    Making backups for personal use

    Making a copy for another location (i.e. copying a CD for your car CD player)

    Making a copy for a friend

    Photocopying a page from a book at a library

    In fact, by their definition, fair use seems to only cover referencing copyrighted material in other copyrighted material, for example, a book reviewer quoting a paragraph from a book in his review of that book.

    There must have been some case law that expanded the definition of fair use beyond what they refer to. Perhaps Sony vs. Betamax? Anybody know?

    • Re:Fair Use (Score:4, Informative)

      by odin53 (207172) on Thursday July 24, 2003 @03:13PM (#6524692)
      The codification of fair use in section 107 is a list of factors that a court should think about in determining what is fair use, so it's not a complete list of fair uses. For your examples, though:

      Timeshifting is fair use under the Betamax case;

      "backing up" recordings for personal use is a codified "fair use" under the Audio Home Recordings Act, and backing up software is "fair use" under section 117;

      making a copy for another location is the same as the previous bullet, as long as it's for personal use;

      making a copy for a friend is NOT a fair use under 107 or the AHRA; and

      photocopying a page from a book at a library is a fair use under 107 -- re-read the first paragraph of it ("Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright").

      Remember that, ultimately, fair use depends on the character of the copying.

  • by MichaelCrawford (610140) on Thursday July 24, 2003 @01:14PM (#6523340) Homepage Journal
    You can avoid being sued or arrested if you download legal music instead of getting your tunes from the p2p networks.

    Many unsigned musicians provide free downloads of their music on their websites as a way to attract more fans. Here's mine [geometricvisions.com] for example. Many such musicians, while relatively unknown, are as good as any major label band and certainly an improvement over the pablum they serve up on ClearChannel.

    You can find many more examples in my new article:

    The article also explores some of the historical and legal issues behind copyright, and suggests steps the file traders can take to make file sharing legal.

    If you're a musician who offers downloads of your music, I can link to your band's website from the article if you give my article a reciprocal link. Please follow the instructions given here [goingware.com]

    • by MichaelCrawford (610140) on Thursday July 24, 2003 @01:39PM (#6523666) Homepage Journal
      You won't get the RIAA or MPAA to admit this, but you should understand that none of the forms of intellectual property are Constitutional rights. Neither copyright, patent, trade secrets nor trademarks are guaranteed to anyone by the Constitution.

      The Constitution grants Congress the power to create intellectual property, but does not require it to do so. Congress could do away with copyright in a single day, simply by passing a bill that eliminated it. They wouldn't even need the President's signature, if they had enough votes to override a veto.

      From Article 1, Section 8 [cornell.edu] of The Constitution of the USA [cornell.edu]:

      The Congress shall have power to... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

      it's important to understand that the purpose copyright and patents were allowed for in the Constitution at all is "to promote the progress of science and useful arts" - that is, to benefit society by stimulating the economy, rather than benefitting the creators of the works. That's not what Jack Valenti would have you believe.

      I discuss this at some length in the section called Change the Law [goingware.com] which is part of Links to Tens of Thousands of Legal Music Downloads [goingware.com].

      If you don't think it's within your power to change the law, consider that there are more Americans sharing files on peer-to-peer networks than there were Americans who voted for George Bush.

      My article explains some steps you can take to change the law. The following are links to the explanation of each one, just to pique your interest:

      If you agree with what I have to say, please link to my article from your own weblogs or websites. I feel what I have to say in it is important, which is why I've been whoring it all over the internet for days.

      Finally, if you're an American slashdot reader, you need to carefully read and thoroughly understand your Constitution [cornell.edu]. It is the highest law of the land, and the finest expression there is of the principles upon which our country was founded. If everyone did so, it would raise the level of the discussion here considerably.

      I'll get off my soapbox now.

  • Question #3 (Score:3, Insightful)

    by Anthony Boyd (242971) on Thursday July 24, 2003 @01:23PM (#6523459) Homepage
    The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work.

    And here is a summary of the DOJ response to that question: "Um, yeah, pretty much you're screwed. Maybe someone will pass better laws."

    They seem to have completely ignored the frustration level of the person asking the question. They don't address the feelings people have about these systems. Instead, they simply comment on the system itself. And that may be what they're legally required to do, but I could sense that more than a few questions were trying to hammer home the point that the system is unfair, and therefore unsupportable by the people. They don't seem to get it. Most corporations don't seem to get this at all -- they're totally out of touch and are going to be completely inept at handling the human response. Which is, of course, to use Kazaa and eDonkey and Freenet more and more and more.

    Hey DOJ! Hey government officials! Hey massive corporations! I can summarize the problem for you in one sentence: the system doesn't honor the public domain or fair use rights anymore, so the people don't honor the system any more. Got it? You want people to respect the laws? Make the laws respectable.

  • Analogy (Score:5, Interesting)

    by verloren (523497) on Thursday July 24, 2003 @01:28PM (#6523529)
    I found this statement amazing:

    "That said, in the cases we prosecute, we believe that using the term theft is not misleading. While there may be technical differences between certain types of infringing activity, conduct that triggers the criminal statutes is analogous to theft."

    1. Lawyers provide a service that is not, in itself, a bad thing, but which is often conducted in a way that many people find distasteful. They charge money for this service, generally collecting from multiple clients, often billing by the hour.
    2. So do prostitutes
    3. Lawyers and prostitutes are anologous
    4. Lawyers ARE prostitutes.

    Actually I was trying to ridicule their argument, but I suspect many people won't see anything wrong with my reasoning :/

    Cheers, Paul
    • Re:Analogy (Score:3, Interesting)

      by greggman (102198)
      I thought you were going to point out the obvious truth of his statement.

      It's theft to visit a doctor and not pay him. It's theft to hire a lawyer and not pay him. It's theft to have a plummer fix your plumming and not pay her. It's theft to hire a gardener and not pay her.

      In all those cases what did the doctor, lawyer, plummer or gardener lose? What did you physical object did you deprive them of?

      NONE!!!!!!!!!!

      Yet it's still theft! It's theft of time and labor which is the same for IP.
  • Ugly math (Score:3, Insightful)

    by los furtive (232491) <ChrisLamothe@gma ... ERGom minus poet> on Thursday July 24, 2003 @01:32PM (#6523593) Homepage

    In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars.

    Hmm...if each item on the server was worth $50 dollars it would come up to a million dollars. But we all know that a DVD costs $30 and a CD costs $20, and I bet you a big chunk of those 20,000 titles are individual songs.

    This is exactly the sort of absurd figure the original question was talking about.

  • by illumin8 (148082) on Thursday July 24, 2003 @01:37PM (#6523651) Journal
    Great interview! I'd just like to point out one section where it seems that the attorney answering these questions is still out of touch with the realities of the "damage" that is being caused by IP infringement:

    The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.

    I think the DOJ attorneys are still failing to realize that the number of times a copyrighted work is duplicated (or downloaded) is in no way indicative of the number of times it would sell for full retail price in a store. They need to accomodate the fact that 99% of those downloading an infringing work would _not_ buy that work under normal circumstances, so it is _not_ a sale lost by the copyright owner. The vast majority of those downloading or illegally duplicating pirated works are college students that couldn't afford a $500 software package in the first place. They just want to be able to try the software and learn it so they can be ready to enter the workforce with the skills necessary to succeed in today's competitive job market.

    I should also mention at this point that piracy actually helps a lot of large software corporations by creating a market for software where none existed in the past. Take Microsoft for example. Microsoft has actively encouraged piracy of their products in the past and it has been a huge success for them. By encouraging piracy, you get your products into the hands of early adopters and the techno-elite who will be making purchasing decisions for their corporations, thereby directly buying more product from you at a higher price.

    I'd be willing to bet that the prevelance of MS Windows + MS Office as a desktop standard is the direct result of pirated versions of MS Windows + MS Office that were used on a technology decision maker's home computer, and when he decided on an Office platform for his work he just happened to choose the one that he was "most familiar" with.

    Take Adobe Photoshop as another example (another one of the most widely pirated pieces of software out there). Any coincidence that their market share is due in large part to college students that just "happened upon" a free copy and took their Photoshop skills with them out into the workforce after college?

    The college students of today will be the executives and corporate decision makers of tomorrow, and every executive knows that you can't use pirated software on your work machines. The few dollars lost to the college students that infringe on copyrights now will be more than made up for by the millions in sales in coming years when those people are in the work force.

    I'm all for using the might of the DOJ to punish counterfeiters and organized crime rings that are profiting from other's copyrighted works, but let's leave the poor college students alone. The bottom line should be "if you don't profit from someone elses work, there is no infringement."

    • Great point. I'd also like to add: enough with the "Intellectual Property" nonsense. The lawyers in the interview keep referring to the Constitution providing for such an idea; it does not. Nowhere is there the slightest suggestion that ideas (or their implementation) are == property. You cannot own the intangible, no matter how many times you repeat the words. If it doesn't exist, you can't own it. Say it to yourself.

      Disagree? Hand me a song, and I'll reconsider. (That's the song itself, not a CD, not s

      • Great point. I'd also like to add: enough with the "Intellectual Property" nonsense. The lawyers in the interview keep referring to the Constitution providing for such an idea; it does not. Nowhere is there the slightest suggestion that ideas (or their implementation) are == property. You cannot own the intangible, no matter how many times you repeat the words. If it doesn't exist, you can't own it. Say it to yourself.
        Disagree? Hand me a song, and I'll reconsider. (That's the song itself, not a CD, not shee
  • by StormReaver (59959) on Thursday July 24, 2003 @02:24PM (#6524180)
    Mr. O'Leary talked about how rapists get harsher sentences than copyright infringers, but he is mistaken. He talks about how one count of copyright infringment is punished more leniently than one count of rape, but he overlooks how the law treats counts of copyright infringment. Each copy of the same software is treated as one count. To put this in comparable terms, you would have to consider each pelvic thrust from the rapist to be one count of rape.

    So if someone illegally distributes 100 copies of a single software title, he is guilty of 100 counts of copyright infringment. He can realistically get a sentence many times worse than someone who violently and brutally rapes 10 people.

    Mr. O'Leary also talks about copyright infringement only in terms of small companies who are totally dependent on one or two software titles when he justifies those extreme sentences. He steers completely clear of multi-billion dollar corporations who will feel nothing more than a temporary pinch (at worst), and who will more likely (according to most research) experience an increase in profits due to increased exposure.

    He also steers clear of the concept that just because someone downloads a copyrighted work, he would have bought it had it not been available for download. I can't fault him for this one, though, because everyone and his brother would make than claim if it were a real defense. Basically there is no reliable way to judge someone's intent regarding what he would have done under hypothetical circumstances, so illegally copying must be enforced against all incidents. But still, copyright infringement is punished exponentially harder than all other crimes.
  • by v1 (525388) on Thursday July 24, 2003 @02:30PM (#6524244) Homepage Journal
    It seems his answers to questions #3 and #7 are in conflict with eachother.

    Question #3 asks if passing into public domain is nullified due to laws preventing the bypass of copyright-protection mechanisms. The reply seems to be that this is not the case because it stops applying after the work passes into the public domain.

    Question #7 asks if the law supports the prevention of fair use by making a work uncopyable, and the reply indicates there is no law to prevent an author from making a work uncopyable.

    By combining these two points, we have the question: "Can an author legally eliminate fair-use of his work by placing copy-protection technology on it?" It would seem that the answer is YES.
  • by Anonymous Coward on Thursday July 24, 2003 @02:34PM (#6524286)
    Loss of market value is not theft.

    Even in the case that the causing party operates illegally, the resulting loss of market value is not theft.

    While there are certainly better examples, consider the following: suppose that I sell prescription drugs illegally, and at a vastly reduced price. Suppose further that my selling causes the market value of these same prescription drugs at my local pharmacy to be dramatically reduced.

    In this case, I have not stolen anything from my local pharmacy.

    It is true that I have an expectation to be prosecuted for my illegal dealings, and it is also possible that the local pharmacy may bring a civil suit against me, but it is not true that I have stolen anything from my local pharmacy.

    This is because, even though I have through illegal means caused the market value of their products to be reduced, the pharmacy has no right to be successful in selling prescription drugs at all; they may have a right to try to do so, but they have no right to be successful in doing so.

    Likewise, the RIAA or the artist Usher, have no right to sell copies of Usher's music at any certain price, or at all. They may find themselves able to do so, and may try to do so, but they have no right to be successful in doing so; they have no right to any particular market value, nor to any market value at all.

    Have I missed anything?
  • by pla (258480) on Thursday July 24, 2003 @02:37PM (#6524308) Journal
    (While sarcastic, I have attempted to not outright put words in their mouth, for which they would no doubt find a reason to sentence me to federally-sanctioned assrape).

    Q) What services [do you offer] for an open source copyright holder
    A) None. We consider the "seriousness of the offense", and since open source neither involves money, nor do we take it serious, we mostly ignore the lot of you. Insert example of an actually for-profit small business suffering that we helped.

    Q) Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?
    A) They don't actually get worse sentences, they get a maximum of five years per count. Now please don't do the math to figure out that, while most people only commit one or two murders, all you pitiful little geeks carry around "mix" CDs that, at our whim, would get you 800 years in the federal pen to hang out with all those murderers and rapists you mention.

    Q) 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?
    A) Look at the monkey. Look! Look at it! Oh, and don't circumvent any copy protection, or else.

    Q) how will you prevent this 'going native' phenomenon?
    A) We prefer to think of it as "becoming civilized" rather than "going native". Insert "mom & pop" reference again. Mention "checks and balances" that have no relevance since we decide who to bring to trial in the first place. Damnit, stop thinking out loud.

    Q) Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones?
    A) No.

    Q)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?
    A) Sorry, false advertising cases go to the FCC, who just got spanked by congress so don't expect much from them for a few decades.

    Q) does [fair use] exist?
    A) Yes, for journalists. All you damn thieves (see previous answer) can go pound sand. If you don't like DRM, don't buy - er, license - any new music or movies.

    Q) Is a distinction made between different levels of IP infringement?
    A) Yes. We prosecute yours, while the RIAA can do no wrong. Mom & Pop. Civil matter, go away. Meep.

    Q) Do you know of any cases in which the sender of an invalid takedown notice ... has been successfully charged with perjury?
    A) No no no, you misunderstand. They don't actually have to tell the truth, they just need to actually hold the copyright they claim you infringe. We don't really give a damn whether or not they actually have a sound basis for harassing all you plebes and sticking you with huge legal bills - We just care that you don't do use similar tactics on the real "victims" here, the RIAA. (I wish I didn't mock this one so true to the actual answer).

    Q) What is your opinion on the case of Daniel Peng?
    A) No comment.

    Q) do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning?
    A) Yes, but not enough. Damnit, if only we could make these things electrocute people who tamper with them! That'd teach you damn hippies.

    Q) As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US?
    A) While historically the Canadians have told us to go [expletive deleted] ourselves on matters of IP and copyright, thanks to our recent proving of our total and utter insanity in Iraq, we have made great strides in expanding US legal hegemony. We have complete confidence that, within a few years, we won't even need to go through diplomatic channels to simply abduct foreign nationals in their sleep for the purpose of pretending to give them a fair trial here in the Land of the Free.
  • Pyramid-scheme math (Score:3, Informative)

    by jesser (77961) on Thursday July 24, 2003 @09:58PM (#6528413) Homepage Journal
    Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket.

    Factoring in the number of times each file is downloaded only makes the damages skyrocket if you use pyramid-scheme math. Ignoring leechers and rippers, the number of people who have downloaded a given file is equal to the number of people who are hosting it, so on average, each host has distributed 1 copy of each file.

"Mach was the greatest intellectual fraud in the last ten years." "What about X?" "I said `intellectual'." ;login, 9/1990

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