Readers of the TeleRead area will recall the Nixonian threats that Bruce Lehman--Bill Clinton's intellectual property czar--made against law professor James Boyle. So what happens if copyright law grows tougher, as many on Capitol Hill hope? Will bureaucrats selectively apply it someday against uppity folks like Boyle? And what about students and professors who inadvertently violate copyright law? Even sending newspaper clips to friends via e-mail could conceivably be an explicit violation in the future if some copyright hawks get their way. What political activists on the Net do not swap newspaper articles and other important material? Mapping out strategy, they're especially likely to pass on to each other the writings of their foes: the very kind of people most likely to pressure Washington to make legal trouble--First Amendment be damned.
Clearly the risk of abusive copyright enforcement is growing. In one of the great stories ignored by many in the Amerian media--perhaps in some cases because of publishers' conflicts of interest--the Justice Department is seeking new tools to allow criminal prosecution of alleged pirates. It's backing legislation that would expand the definition of criminal violations in a needlessly broad way.
Les Black, publisher of an interesting new newsletter called Internet Law Heads-Up, reports: "The Criminal Division of the United States Department of Justice created a brand new Section in 1996--the Section on Computer Crime and Intellectual Property." Is Black accusing Justice itself of a vendetta against political enemies? No. He carefully notes that Scott Charney, head of the new section, is considered to be fair. And Black correctly calls attention to Justice's immediate motive--not some evil Nixonian conspiracy, but a desire to plug up holes that let an accused pirate get off the hook.
What, however, if a vindictive, Lehmanesque official replaces Charney in the future? That's my own fear. If I were Newt Gingrich--and I'm not: I'm a lifelong liberal Democrat who voted for Bill Clinton in both '92 and '96--I would watch Justice very carefully and do all I could to oppose Justice's overkill in its efforts to expand the definition of criminal copyright violations.
Below, by permission, is a verbatim reproduction of samples from Les Black's newsletter. Subscription and copyright information appear at the bottom. And stay tuned for a Heads-Up Web area: e-mail Les Black for the latest on that.
--David H. Rothman, rothman@clark.net, Feb. 8, 1997
Published by Les Black, Attorney-at-Law
heads-up@webchoice.com
January 1, 1997
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Welcome to the third issue of Internet Law Heads-Up, my monthly e-mail letter on how law and lawmakers are impacting the net. E-mail subscriptions to Internet Law Heads-Up are free. Please see the end of this e-mail letter for subscription information.
The convergence of the law with the Internet is making news. Reporters have tuned in to the coming Supreme Court review of the Communications Decency Act, disputes over domain names, challenges to the limits on encryption and assertions of jurisdiction over faraway defendants based on their web sites.
But the press (in both its digital and dead tree sectors) has ignored another story. The report that follows is vital to the internet community. Chances are good, however, that you are hearing some of it now for the first time.
Here's what's in this issue:
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
UP AGAINST THE WALL, COPYCAT (Part One)!
The Criminal Division of the United States Department of Justice created a brand new Section in 1996 - the Section on Computer Crime and Intellectual Property. Its creation should have made news, but so far it has caught little attention.
As a result of a tip from a reader (many thanks and keep 'em coming!), I contacted Scott Charney, who formerly ran the computer crime unit in the General Litigation Section and now heads the new Computer Crime and Intellectual Property Section.
Those who know Mr. Charney say he treats people fairly. But he's no pushover. Scott Charney spent seven years as a prosecutor in the criminal courts of the Bronx. By coincidence, I started out as a public defender in the criminal courts of the Bronx. It's a gruelling place. Anyone who spent seven years there must be tough. He may be known as Mr. NiceGuy, not J. Edgar ToughGuy, but he's tough enough.
Mr. Charney told me that the Department of Justice wants to "move more resources to computer crime." But why add the words Intellectual Property to the name of the new Section? Because, he stated, the Criminal Division of the Justice Department is going to step up its "focus on the protection of intellectual property."
Whoa! Does this mean that the Feds are aiming their cannons at ordinary copyright and trademark offenders, who have been traditionally left to the civil arena? Mr. Charney could not disclose information about cases in progress. He would not even say whether there are cases in progress. But the Justice Department does not name its Sections out of whimsy. Look for more copyright and trademark infringement indictments in 1997.
But the news does not stop there. Mr. Charney also told me that the new Computer Crime and Intellectual Property Section will push to "set the legislative agenda" on copyright and trademark issues. What legislative agenda? The first objective he mentioned was the Criminal Copyright Improvement Bill.
The Criminal Copyright Improvement Bill, introduced in 1995 as Senate Bill #1122 and sponsored by Senator Patrick Leahy (D-VT), was referred to the Committee on the Judiciary, where it stayed. The bill did not reach a floor vote in the 104th Congress, but it will no doubt be back in the 105th.
This bill would amend the Federal Copyright Act, at 17 U.S.C. 101, by defining "financial gain," a term previously undefined, to include "receipt of anything of value, including the receipt of other copyrighted works."
This new definition is important because current law, at 17 U.S.C. 506, makes copyright infringement a crime when it is done "willfully and for purposes of commercial advantage or private financial gain." Expanding the definition of financial gain expands the scope of criminal copyright prosecution.
The bill would also add language to 17 U.S.C. 506 making copyright infringement a crime when it is done "by the reproduction or distribution, including by transmission, or assisting others in such reproduction or distribution of, one or more copies, of one or more copyrighted works, which have a total retail value of $5,000 or more." Expanding the pool of potential defendants also expands the scope of criminal copyright prosecution.
Other provisions of the bill would stiffen criminal copyright infringement penalties and allow copyright owners to provide victim impact statements to the court.
(Heads-Up Bookmark: Thomas, the Congressional web site located at http://thomas.loc.gov, tracks legislative action in the United States Senate and House of Representatives. It's a static site, disappointing at times because it is not devised for random browsing and not always up to date. But when you need basic data on a pending bill, Thomas satisfies its promise. Tell Thomas that you want information on s. 1122 in the 104th Congress and you can access the full text of the Criminal Copyright Improvement Bill, a summary of its terms, the text of Senator Leahy's introductory remarks and more.)
The Criminal Copyright Improvement Bill was drafted in response to the dismissal of an indictment in the case of United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994). To understand the support for this bill, we must, in the next part of this discussion, go back and look at the case that led to it.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
UP AGAINST THE WALL, COPYCAT (Part Two)!
David LaMacchia was a student attending MIT when, according to prosecutors, he launched a pirate bulletin board which encouraged and enabled people to illegally trade copies of copyrighted software programs. Mr. LaMacchia allegedly received nothing for his endeavors, aside from whatever kicks he derived in helping others violate copyright laws.
When they busted him, law enforcement officers found to their dismay that Mr. LaMacchia could not be charged with criminal copyright infringement under current law because he apparently made no money from his BBS and because others allegedly executed the actual uploading and downloading.
Lacking evidence that Mr. LaMacchia acted for "purposes of commercial advantage or private financial gain," the Department of Justice instead obtained an indictment against Mr. LaMacchia for conspiracy to violate the wire fraud laws. But the United States District Court for the District of Massachusetts dismissed the indictment, holding that where the essence of a charge is copyright infringement, the defendant must be charged under the copyright laws and not a back-door substitute.
The District Court was not happy to let David LaMacchia, whom it called "lacking in any fundamental sense of values," off the hook on a technicality. The Department of Justice was even less pleased to see their fish swim away. In response, lawyers for the Justice Department helped write the Criminal Copyright Improvement Bill.
There is little doubt that this bill, if passed, would help the Justice Department snare the next David LaMacchia. But does the bill cast too wide a net? Does it catch not just more fish but also every dolphin for miles around?
By relaxing the definition of financial gain to the "receipt of anything of value, including the receipt of other copyrighted works," the bill could turn anyone who ever swapped a copy of some commercial software into a criminal. The Feds may not start lurking outside every dorm room or Dilbertesque cubicle, but if they did, they would find many newly-defined criminals.
In addition, by making it a crime to willfully assist others who reproduce or distribute (including by transmission) "one or more copies, of one or more copyrighted works, which have a total retail value of $5,000 or more", the bill could turn internet service providers into potential felons. The monetary threshold could be reached by counting web hits even if the copyrighted work is only a magazine article, and the willfulness criterion could be satisfied through the doctrine of imputed knowledge.
The doctrine of imputed knowledge says that, if an employee knowingly and intentionally allows the unauthorized posting of copyrighted material, the employee's willful act can be imputed to the corporation for whom he or she works.
Imputed knowledge can be diffused among diverse employees. If one employee knows that an article is copyrighted and another employee fails to enforce copyright compliance procedures and yet another employee allows the article to be posted on its web site, an ISP could find itself prosecuted under the doctrine of aggregate imputed knowledge set forth in United States v. Bank of New England, l821 F. 2d 844 (First Circuit, 1987).
Even beyond the doctrine of imputed knowledge, an ISP could face trouble if this bill passes. If one of your customers posts a copy of a controversial manuscript on a web site that you host, do you block access to the site and risk a customer lawsuit if the posting turns out to be a lawful exercise of fair use and free speech? Or do you allow access and risk Federal prosecution if the posting turns out to infringe a copyright?
The loophole that let David LaMacchia off the hook needs closing. But the Criminal Copyright Improvement Bill, as now proposed, goes too far. If passed without changes, it could turn innocents into criminals and apply a chilling effect on our First Amendment freedoms.
Will this bill pass in 1997? With its former sponsor, Senator Leahy, moving up to the position of ranking minority member on the Senate Judiciary Committee, and with Scott Charney of the new Section on Computer Crime and Intellectual Property making passage of this bill a key priority, its chances look good.
If the Internet community wants to push for changes in the Criminal Copyright Improvement Bill before its likely enactment, we need to get moving now.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
PANAVISION V. TOEPPEN REVISITED
In Internet Law Heads-Up #2, I discussed the domain name, trademark dilution and jurisdiction issues raised in two separate decisions in the case of Panavision International v. Dennis Toeppen.
Now there are three Panavision v. Toeppen decisions. Just as Internet Law Heads-Up #2 was hitting the wires last month, the United States District Court for the Central District of California announced an additional order. The Court rejected Panavision's claim against Network Systems, Inc. (NSI), the group in charge of registering all .com domain names.
While suing Dennis Toeppen, Panavision had joined NSI as a defendant in a count alleging negligent interference with prospective economic advantage. Panavision maintained that NSI should not have allowed Dennis Toeppen to register the Panavision domain name.
In granting Summary Judgment to NSI, the Court held that NSI has neither the resources nor the duty to investigate each applicant's right to use a domain name. "NSI registers 50,000 domain names per month," the Court stated, "and Panavision has produced no evidence suggesting that NSI knew or should have known that co-defendant Dennis Toeppen's registration of 'panavision.com' would harm Panavision."
Those of us who have listed domain names with NSI are aware that NSI requires applicants to represent that they have the right to use the requested domain name, that the registration of the domain name will not interfere with the trademark, service mark, trade name or company name of any third party and that the applicant is not seeking to use the domain name for any unlawful or misleading purpose.
If NSI had to independently verify the truth of 50,000 such representations each month, the burden would paralyze NSI's registration process. The Panavision cases take at least some heat off NSI.
Previously, when Panavision claimed protection as a third-party beneficiary of Dennis Toeppen's representations to NSI, the Court rejected that argument, holding that sole purpose of the representations "is to protect NSI." Now the Court has gone further to hold that NSI need not umpire the intellectual property rights to a domain name, at least until a challenge is raised. But what is still needed from NSI is a more efficient process after such a challenge is raised.
(Heads-Up Bookmark Encore: Full text reports of all three Panavision v. Toeppen decisions are now available without charge at http://www.bna.com/e-law/libindex.html. This web site of BNA's Electronic Information Policy and Law Report, which I recommended last month, continues to offer one of the best free collections on the net for internet law case materials.)
My comments on Panavision v. Toeppen in Internet Law Heads-Up #2 provoked approval from a number of readers. One reader wrote, "I try to keep up on these issues and have read a fair amount.... I must say, however, that your article is, by far, the best presentation of these issues that I have seen. You really lay it out succinctly and logically, and your analysis is right on. Thanks for taking the time to contribute to the dialog on these issues in a really helpful and meaningful way."
Thank you to all who have sent your news and your comments to me. I look forward to hearing more from you. Happy New Year!
Virtually,
Les Black, Attorney-at-Law
Publisher, Internet Law Heads-Up
Warwick, Massachusetts, USA
Voice: (508) 544-3941
Fax: (508) 544-3995
E-Mail: lesblack@webchoice.com
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Internet Law Heads-Up welcomes your comments, questions, rants, raves and concurring or dissenting opinions. Please e-mail them to heads-up@webchoice.com.
For your free e-mail subscription to Internet Law Heads-Up, please send e-mail to heads-up@webchoice.com with Subscribe (Your Name) in the subject line.
To unsubscribe, please send e-mail to heads-up@webchoice.com with Unsubscribe (Your Name) in the subject line.
To change your listed address, please send e-mail to heads-up@webchoice.com with Change (Your Name) in the subject line and your new e-mail address in the body of your message.
To request back issues of Internet Law Heads-Up, please send e-mail to heads-up@webchoice.com with Archives (Your Name) in the subject line and the number or date of the issue you want in the body of your message.