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RE: A thought about H.R. 2281
Rick et al, > If it does, then why can't the law be written in such a way that the act > of breaking the barriers isn't necessarily illegal, but does allow > investigation of the use of the data that was gotten at. If the use was > fair use - no prosecution, if it wasn't -- it was illegal. I'm no lawyer, but I doubt that you could get very far with a law that says breaking the barriers is only illegal if you then go on to do something else illegal, but is legal otherwise. (Did that make sense?) Actually, many laws do exactly that, making certain acts crimes only if they are done with a certain intent (the mens rea requirement) or if they exceed a certain dollar amount. In fact, most copyright violations are not crimes at all: the copyright holder may be entitled to civil damages, but can't have the violator thrown in jail. However, Sect. 506(a) prescribes acts that constitute criminal infringement, and it was recently amended by the Net Act (P.L. 105-147) to reduce the mens rea requirement, which previously required willful infringement to be undertaken either for commercial advantage or for private financial gain The Net Act is designed to criminalize the not-for-profit piracy. Under this new law, criminal infringement may be willful infringement for commercial advantage or private financial gain, OR it may be willful infringement by "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 $1000." So, you see, if the retail value is $999.99, or if the reproduction isn't "willful," then there's no crime involved. Of course, it's not strictly "legal," and the copyright owner can sue for damages, but it's not criminal unless it falls within 506(a). This is why I think H.R. 3048 is a good bill, and 2281 is a bad bill. The balancing scheme set up under current copyright law has proven to be workable. Publishers certainly cannot claim that they are unable to compete or develop new products under the current scheme, which includes protection for users' rights to information. H.R. 3048 preserves the balance; H.R. 2281 does not. > Am I being extradorinarily naive here? Is it a dangerous precedent to > set, in terms of civil liberties, to have an action (breaking the > barriers) set up a diminution in my right to be presumed innocent? I'm not sure that the presumption of innocence extends to ignoring evidence of crime. And I think there's a good case to be made that hacking past someone's copyright protection utility at least constitutes evidence (though certainly not proof) of criminal intent. Maybe not, though -- maybe enough people are willing to scale those walls to make fair use of protected information that the assumption would be invalid more often than valid. A big problem with the bill is that it prohibits defeating copyright protection mechanisms for reengineering for compatibility, which has been judicially determined to be a fair use. This is a routine practice in the software industry. It allows companies to create utilities compatible with other vendors programs. If this practice cannot be continued, it is likely to put many small software companies out of business. ---------------------- Terry Cullen Electronic Services Librarian Seattle University Law Library 950 Broadway Plaza Tacoma, WA 98402-4470 253-591-7092
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