Legal question regarding the NET act and software "piracy:"
 

I've been doing some research into copyright infringement and online "piracy."

From what I understand, the latest legislation regarding (personal) copying of copyrighted material is the "No Electronic Theft" (NET) Act.

In reference to this, the act states that:

Any person who infringes a copyright willfully either--

(1) for purposes of commercial advantage or private financial gain, or

(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,

shall be punished... [by various fines/jail-times].

( http://www.techlawjournal.com/courts.../pl105-147.htm )


This obviously means that if you are not profiting (including "barter" arrangements) by copying/distributing files or copying/distributing more than $1000 of material in a six-month period, you may not be prosecuted!

I am unsure if this $1,000 is the sum of the value of copied/distributed material of a SINGLE copyright, or if it constutes a TOTAL sum of the value of all copyrighted material.

Regardless of this (fairly important distinction), this Act exempts from prosecution many people who download/upload copyrighted material.


A good (and I assume, fairly official) summation of the NET Act is here:
http://www.cybercrime.gov/netsum.htm


My question is, what legal right does any organization have to impose punishment for non-infringement? For example, what legal right does an ISP have to cancel service to a customer who is within the limits of the $1,000 figure?

law v. bandwidth
 

Let me start by saying that a ALL p2p clients are bandwidth hogs ... gnutella clients more so than others ... ISP's are shutting down the P2P sharing of the folks that abuse the network, not due to any law. That law would not be inforcable against an ISP, only an end user who is selling what he is sharing. A good ISP will have an DS3 (OC1) at worst to the backbone ... on a DS1 (T1) you can host probably 500 or more websites ... or have roughly 200 dialup subscribers attached to the line without much trouble or network lag; however, if the same said 200 users are always connected with p2p shares its going to bog down the whole network ... just FYI a full OC3 will run about 10 grand a month ... at least here in TX, less in places like California and New York. That help? :eek:

no.

ISPs are required to cancel users' accounts if the ISP is aware of illegal piracy (can't remember the particular law). However, if the user is not technically breaking any law (I assume most people are not downloading more than $1000 of MP3s or even software in six months), I don't see how the ISP can legally send Cease and Desist letters.


My first question really is: Under the current legislation in the U.S. it appears that downloading/uploading less thatn $1,000 of material is legal. Is this accurate?

If so, how is any action to prevent this legal piracy actually legal?

Also, unless the music/movie industries are tracking the actual dollar value of downloaded/uploaded files for each individual, their attempts to hinder all piracy (by spoofing, spamming, etc.) seem to amount to digital vandalism or harrassment.


My second question is: Is the "$1,000" amount the value of the total of all pirated copyrighted material, the value of a single copyright, or the value of a single copyright holder?

To clarify: Is it illegal to download/upload $1,000 worth of MP3s by different artists, $1,000 worth of the same song, or $1,000 worth of MP3's by the same artist?

I am not sure if the ISP's can be forced to cancel your account.

I think they just doit on their on so that they will stay out of trouble with company's such as the RIAA.

figure I'd bump this

Legal question regarding the NET act and software "piracy:"
 

Several suggestions:

1) Don't try to interpret the wording of the NET Act too literally. The practice of law is based on intent and precident-- and intent and precident can be use to modify the meaning of the specific words that appear in any given law. That is why lawyers make big bucks.

2) The intent of the NET Act was not to establish thresholds that make certain types of theft legal. Legally, theft is theft. One of the intents of the act was to establish a legal mechanism to limit the amount of small claims from going to court.

3) Lastly, and the most fun consideration, is this-- remember that there are TWO legal systems, if you will-- Criminal and Civil. The NET Act is part of the Criminal Code. If a copyright holder thought it was worthwile to go after a small time offender, they would probably do it as a Civil case.

Yeah, I had neglected to research the civil illegality.

1. How can you suggest not to take the wording literally? I thought law language was carefully picked so as to avoid loopholes. The exact intent is expressed as unambiguously as possible through the language.

2. How do you know what the intent of the NET act is? Whatever its intent it defines criminal copyright infringement (aka, theft) as infringing more than $1,000 in 6 months or making a profit from the infringement. Thus anything less is legal.

3. This is of course the answer; however how can an ISP take action on a civil case?

Sorry that this came off argumentative, but for some reason, that's how I'm being most clear.

Legal question regarding the NET act and software "piracy:"
 

> How can you suggest not to take the wording literally?
> I thought law language was carefully picked so as to avoid
> loopholes. The exact intent is expressed as unambiguously
> as possible through the language.

That's a popular view, but legal history is is full of "reinterpretation", contradiction and sometimes outright distortion of the original intent of all sorts of legislation. This
is why The Law is BIG business.

> How do you know what the intent of the NET act is?

I read it somewhere... I'll see if I can dig up the links.

> Whatever its intent it defines criminal copyright infringement
> (aka, theft) as infringing more than $1,000 in 6 months or
> making a profit from the infringement. Thus anything less is
> legal."

Nice try. If NET were the ONLY law covering the question, you may have a case. However, check out the terms of the Digital Millennium Copyright Act, the World Intellectual Property Organization (WIPO) Copyright Treaty (to which the US is a signatory), and others. Perhaps downloading less than $1,000 worth of material in 6 months does not make you a Federal felon (I'm not an attorney, I can't advise you there), but a property owner (copyright holder) who feels "damaged" can come after you and seek restitution. And just because the property owner chooses not to come after to at this time does not make the activity legal.

> This is of course the answer; however how can an ISP take
> action on a civil case?"

The ISP wouldn't take civil action-- the owner of the copyrighted material can sue for damages.

Refer to this link-- an interpretation of some terms of the DMCA:
http://www.arl.org/info/frn/copy/band.html

Apparently, the ISP has to proide notice that theywill terminate you: "...an [Online Service Provider] must adopt, reasonably implement, and inform its subscribers and account holders (its "Users") of, a policy providing for termination of Users who are repeat infringers."

I strongly suggest talking to an attorney before you act on research based on a single statute. The law just ain't that simple.

I thought civil copyright infringement needed to be determined in court. How, then can ISPs be expected to be the judge? If I download a single Madonna song for personal use, then Madonna can sue me for civil copyright infringement. I assume the state can't sue me for criminal copyright infringement because it is not criminally illegal. The NET act is simply an alteration of the US copyright code, title 17 chapter 5: http://www.copyright.gov/title17/92chap5.html .

I assume that if Madonna's representative sues me civilly for copyright infringement, and wins, then the ISP can then terminate me as a customer, but not before.

This is what RIAA has to say about this issue:

"The DMCA law also delineates the responsibilities of Internet service providers (ISPs) in cases of infringement online. For example, the law formalizes a notice and takedown procedure between ISPs and copyright owners. It is now clear that when an ISP is aware it is posting or transmitting infringing content, the ISP must act to remove the infringing works or it may be liable for any resulting damages."

http://www.riaa.com/issues/copyright/laws.asp

It's like me accusing someone of making harrassing phone calls to me and expecting the phone company to stop the accused's service. How is this legal?

I'm not planning on taking action, this is just curiosity.

Re: Legal question regarding the NET act and software "piracy:"
 

The problem is, we may not have another 6 months left:

The Conyers-Berman bill would operate under the assumption that each copyrighted work made available through a computer network was copied by others at least 10 times for a total retail value of $2,500. That would bump the activity from a misdemeanor to a felony, carrying a sentence of up to five years in jail.

http://www.cnn.com/2003/TECH/interne...eut/index.html