HDTenEightyP/NetNews huggingface dataset:
From: tenney@netcom.com (Glenn S. Tenney)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Date: 18 Nov 92 08:14:14 GMT
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <78WW02z12brH01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>It looks that way on first reading, but not when you look closely.  If you 
>look at the portions of the predecessor statue I posted, you'll see that, 
>while it is true that the only works specifically mentioned as coming within 
>their respective provisions were sound recordings and audio visual works (in 
>2319(b)(1) and 2319(b)(2)), there is (er, _was_; I've got to remind myself 
>that this is the subsection that was just replaced) also a catch-all 
>provision in 2319(b)(3).  Read in context, that is:
>
>  "(b) Any person who commits an offense under subsection (a) of 
>  this section-- 
>     
>    (1) [omitted]
>    (2) [omitted]
>    (3) shall be fined not more than $ 25,000 or imprisoned for not
>    more than one year, or both, in any other case."

And 2319(c) limits which exclusive rights we're talking about
(to 106(1) and (3) only excluding derivative works, performances,
and public displays).

I remember that being added solely for the record and movie companies.
It's interesting that 2319(b) (1) and (2) explicitly cover movies
and records, but that (3) is just a generic "anything else".  This may
be asking too much of our legislators, but perhaps they meant that since
(1) and (2) were well defined -- but covering numbers of copies --
they obviously meant that (3) was intended to cover similar violations
but of lesser quantities.

>Combining all these statutory provisions, where the work involved is not a 
>sound recording or audiovisual work, I read this as:
>
>   "Any person who infringes a copyright willfully and for 
>   purposes of commercial advantage or private financial gain 
>   shall be fined not more than $ 25,000 or imprisoned for not
>   more than one year, or both".
>

If you are correct that 2319(b)(3) is in force for ALL OTHER INFRINGEMENTS,
then -- if you make a single photocopy of a page from Newsweek, you could
be fined $25,000.   No, I think we're missing something here.  Then
again, I love a law that makes virtually 100% of the population
potential felons (let's see, I'm sure that almost everyone has
made some photocopy of a magazine article instead of BUYING an
extra issue -- read that as private financial gain).

-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
tenney@netcom.com          Ham radio: AA6ER
From: oppedahl@panix.com (Carl Oppedahl)
Newsgroups: misc.legal.computing
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Date: 23 Nov 92 01:54:54 GMT
Organization: PANIX Public Access Unix, NYC

In <1992Nov22.203519.5262@panix.com> sbarber@panix.com (Steve Barber) writes:
B

>In <1992Nov19.172309.20014@panix.com> oppedahl@panix.com (Carl Oppedahl) writes:

>>No, this is not quite right.  Assuming we are only talking about
>>copyright here (not patent, not trade secrets, etc) then distributing
>>does not give rise to infringement.  What gives rise to infringement
>>is the copying, which be definition takes place prior to distribution.

>Carl, sir, you are confusing me greatly here.  Consider the following:

>17 U.S.C Sec. 106

>"[T]he owner of copyright . . . has exclusive rights to do and to authorize
>any of the following: . . . (3) to DISTRIBUTE [emphasis added] copies or
>phonorecords of the copyrighted work to the public by sale or other transfer
>of ownership, or by rental, lease, or lending . . . ."

>17 U.S.C. Sec 501(a):

>"Anyone who violates any of the exclusive rights of the copyright
>owner as provided by sections 106 through 118 . . . is an infringer of
>the copyright."

>Reading these together, it sure sounds to me like unauthorized distribution
>of copyrighted material is infringement.  Am I missing something here?

>-Steve Barber

You know, I think you are right in what you have quoted.  I think I must
have been using "distribute" rather colloquially, to include copies
that change hands without money.  I appreciate your pointing that out.

What readers should take away from this includes the following, however.
Even if simply possessing an unauthorized copy does not make you strictly
speaking an infringer, you still are at risk that your copy may be 
impounded and destroyed.

In one case of mine, customers had paid $5-15K for a program.  A jury
decided that the source code used to make the program included some lines
copied from my client's software (without authorization).

The customer copies were impounded and destroyed.  The company they paid
their $5-15K to was out of business.  


Carl Oppedahl AA2KW  (intellectual property lawyer)
30 Rockefeller Plaza
New York, NY  10112-0228
voice 212-408-2578     fax 212-765-2519
Xref: sparky misc.legal.computing:2307 comp.org.eff.talk:7164 misc.int-property:1486
From: tenney@netcom.com (Glenn S. Tenney)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Criminal intent  was Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Date: 21 Nov 92 08:11:34 GMT
Article-I.D.: netcom.1992Nov21.081134.12944
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <1992Nov20.230941.21278@eff.org> mnemonic@eff.org (Mike Godwin) writes:
> ...
>Criminal intent is still needed. The rule of construction for 
>criminal statutes is that the intent applies to every element of the
>crime. So you're not just willfully making copies--you're willful with
>regard to all the other elements named in the statute. For example,
>you have to be willfully making the copies *for gain*.

This may not be the proper forum, but not being an attorney I
am at a loss in understanding mens rea and the criminal nature
of a "willful" act.

If you know that the program you own is copyrighted,
and you know that copying it to give to someone else
is not allowed, but you DO copy it and give it to a
friend, have you met the definition of "willful" copying?
Can we ignore how many copies were made and whether you
gained financially from them?  Is that critical in determining
whether the copy you made was a willful infringement?

-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
tenney@netcom.com          Ham radio: AA6ER
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: strnlght@netcom.com (David Sternlight)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Sat, 21 Nov 1992 08:59:15 GMT


Though I am not an attorney, I think Glenn Tenney's equating of opportunity
costs (what something would have cost if you bought it) with financial
gain may not be what the law means by financial gain.

I think the law means receiving money, i.e. selling a copy.

In particular, one might argue that one would not have bought the item
if he hadn't copied it, so although there is value, and perhaps even
gain, there isn't FINANCIAL gain.

-- 
David Sternlight
PGP public key on request; RIPEM public key on server


Newsgroups: misc.legal.computing
From: brad@clarinet.com (Brad Templeton)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Organization: ClariNet Communications Corp.
Date: Mon, 16 Nov 1992 10:19:50 GMT

I don't know about modern times, but in the early days, it was most certainly
forbidden to distribute disks with the DOS system on them.

In those days, many (most) people had floppy disk only systems, and so
it was quite common for people with turn-key software to want to have DOS
on the disk to boot and run.

They had to pay a large fee for this, and so most ended up distributing
disks that had been formatted with empty slots for the system files but
no actual DOS code.  Users were instructed, when they got their disks, to
do a sys command to them to make them bootable.

Problem was that the OS kept growing, and an old disk didn't have room for
a new system.  You then had to make a DOS disk and copy the files over.

Anyway, soon enough everybody got hard drives, and the desire for bootable
stand alone floppy products waned, and DOS got universal enough that
nobody cared, but I would guess the restrictions are still there.

Nowadays there are lots of reasons not to distribute such a disk, since
users like to control their own machines and their setup, and not run
the OS as configured by somebody else.
-- 
Brad Templeton, ClariNet Communications Corp. -- Sunnyvale, CA 408/296-0366
Newsgroups: misc.legal.computing
From: oppedahl@panix.com (Carl Oppedahl)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Date: Thu, 19 Nov 1992 17:23:09 GMT
Organization: PANIX Public Access Unix, NYC

In <8f4n02Ep2bk=01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:

>In article <bhayden.721865941@teal>, bhayden@teal.csn.org (Bruce Hayden) 
>writes:
>> >In <Bxnv3t.KB2@sju.edu> mctague@sju.edu (Brendan McTague) writes:
>> >>Is it against copywrite laws to distribute bootable disks that
>> >>contain DOS 5.0 command.com and the hidden files?
>> 
>> I would tend to agree. If the files were placed on the diskette
>> by DOS SYS or FORMAT commands, I would argue that that is an implied
>> license by Microsoft (who sold you SYS and/or FORMAT) to copy those
>> files. Alternatively, I would possibly argue fair use.
>> In any case, you will probably be ok with those files. Any other
>> files would probably infringe the copyright.

>To get to Brendan's original question, though, he wanted to know if it's okay 
>to _distribute_ the resultant copies.  I don't see any problem with 
>construing an implied license to use the FORMAT commands, etc. to make your 
>own personal bootable copies (if for no other reason than the "essential 
>step" criterion of s. 117).  However, distributing the copies is still 
>probably an infringement is no license is to the contrary.

No, this is not quite right.  Assuming we are only talking about
copyright here (not patent, not trade secrets, etc) then distributing
does not give rise to infringement.  What gives rise to infringement
is the copying, which be definition takes place prior to distribution.

Surely you've read those news stories where Microsoft and the G-men
swoop down on a factory full of fake MS-DOSes.  The stuff has not been
distributed yet, but still counts as copyright infringment.

So ... to be quite clear about this, if you buy a pirate copy of
a videotape at a truck stop (not knowing it is unauthorized by the
copyright owner) you are not an infringer, any more than the seller
was.  It is the person who made the pirate copy, who may or may not
be the storekeeper.

But you and the storekeeper are still at risk, even if your conduct
was innocent, because the infringing copy may be impounded and
destroyed.  You are at risk for the value of the item, since it may
be taken from you.

None of this is legal advice.  See a lawyer before acting if this 
matters to you.


Carl Oppedahl AA2KW  (intellectual property lawyer)
30 Rockefeller Plaza
New York, NY  10112-0228
voice 212-408-2578     fax 212-765-2519
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: tenney@netcom.com (Glenn S. Tenney)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Wed, 18 Nov 1992 07:34:12 GMT

In article <1992Nov17.123218.3980@eff.org> mnemonic@eff.org (Mike Godwin) writes:
>Glenn, the requirement that the person be willfully making copies for
>gain is in fact a criminal-intent requirement.

Therefore, if I knowinly make copies of something that I did NOT know
was itself an illegal copy, then:

(a) I did willfully make copies

(b) there was no criminal intent

I know that 'a' is true, but I would not have thought that 'b'
was true -- but that is my reading of what you said.

Are we discussing a significant point, though?  I was merely trying
to say that no CRIMINAL intent was needed.


-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
tenney@netcom.com          Ham radio: AA6ER
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: whs70@dancer.cc.bellcore.com (sohl,william h)
Subject: Re: S893 - Copyright infringement a felony
Organization: Bellcore, Livingston, NJ
Date: Fri, 20 Nov 92 20:13:09 GMT
Keywords: copyright infringement felony

In article <1992Nov20.164818.14414@netcom.com> strnlght@netcom.com (David Sternlight) writes:
>Glenn Tenney says there's a diference between borrowing audiotapes
>(of, say, a seminar or self-help program) from a public
>library, and a fee-charging lending library, as far as copying the
>tapes for later use after the originals have been returned.
>What is that difference, as far as the legal position of the copier
>is concerned?
>
>To expand the discussion, what about the common practice of copying
>tapes one already owns, in order to have a copy in the car and one
>at home, both for personal use?

Even if it is a technical violation of copyright, it has not been
challenged by the recording industry to the best of my knowledge.
Also, as has been mentioned several times, there's no real way
the recording industry could ever stop personal copying.  It seems
the general perception (including those in congress) is that audio
tape copying is perfectly OK as long as the individual is only doing
it for themselves (eg. making an audio cassette version of a CD to
play in the car, or taping directly from FM broadcasts, etc.)

Actually I think there's a good analogy to such taping in the software
field.  Example - If I buy a copy of an IBM DOS based program that
happens to be on a 3.5" floppy, there's nothing wrong with my making a 
copy of that onto a 5.25" disc so I can run that software on my old
IBM clone, dual floppy computer.  Likewise, if I buy a CD, I see nothing
wrong with making an audio cassette version to play in my car or a
walkman.  

Bottom line, in my opinion, is that if I buy a copy of a piece of
music, I should be able to play it on any type equipment I own.  If that
requires making a duplicate copy in another playing format, then that
should be perfectly OK.  Anyway, that's what I feel.  

Standard Disclaimer- Any opinions, etc. are mine and NOT my employer's.
-----------------------------------------------------------------------
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Morristown, NJ             email via UUCP      bcr!dancer!whs70
201-829-2879 Weekdays      email via Internet  whs70@dancer.cc.bellcore.com

Newsgroups: misc.legal.computing,misc.int-property
From: srctran@world.std.com (Gregory Aharonian)
Subject: Re: Chipping in for a Patent Office report
Organization: The World
Date: Wed, 18 Nov 1992 22:05:46 GMT

Glenn,
	Thanks for the offer to contribute. You're the fourth.  One more,
and with me, and I'll have six people at 10$.
	About the CDROMS, I know they are encoded.  However, they do allow
you do save the text to ASCII files, which I could post.  It will take
some work to pull it all off the CDROMs, but I would be willing to put the
time in.

Greg Aharonian
-- 
**************************************************************************
Greg Aharonian
Source Translation & Optimiztion
P.O. Box 404, Belmont, MA 02178
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: tenney@netcom.com (Glenn S. Tenney)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Thu, 19 Nov 1992 10:45:58 GMT

In article <1992Nov19.092752.14326@netcom.com> strnlght@netcom.com (David Sternlight) writes:
>
>Glenn Tenney suggests that copying HBO movies for personal time shifting
>purposes (assuming one has paid for HBO) is private financial gain to the
>tune of the cost of the commercial tape version of the movies.

oops...  My posting was in reference to your hypo #2 in making
100 copies of audiotapes from a library and had nothing to do
with the HBO hypo.


-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
tenney@netcom.com          Ham radio: AA6ER
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: strnlght@netcom.com (David Sternlight)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Thu, 19 Nov 1992 18:48:35 GMT


Glenn Tenney suggests that copying course tapes from a lending library
for personal time-shifting use is financial gain to the extent
of the commercial value of such tapes (I suppose, not to pick a nit,
less the cost of one's blank tape).

How is this different from time-shifting of HBO movies one has paid
the HBO fee for?

Is there a distinction between public libraries one has paid for in taxes
and a private library one pays a fee to?

In particular, is the time-shifting of HBO permitted by specific language
that does not cover the case of library tapes, or is there something in
the law that distinguishes the two cases?

Finally, do libraries pay an additional fee to permit their lending out tapes,
in which case there may be special conditions, or can anyone just buy a
tape at the market price, declare oneself a library, and lend to anyone
for a fee or free?

-- 
David Sternlight
(pgp 2.0 and ripem public keys available on request)

Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: Criminal intent was Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Colorado SuperNet, Inc.
Date: Sun, 22 Nov 1992 13:29:38 GMT

tenney@netcom.com (Glenn S. Tenney) writes:

>In article <bhayden.722378616@teal> bhayden@teal.csn.org (Bruce Hayden) writes:
>> ...
>>If you know that copying is not allowed, and you copy anyway, 
>>then you have the mes rea of the crime. However, for S 893 
>>(PL 102-xxx), you also need to make at least 10 copies, of
>>one or more works, with a value >= $2,500. 
>> ...

>First, I wanted this thread to focus strictly on the criminal intent
>aspect of copying software rather than the other parts of S893
>(yes, PL 102-???).  However, S893 *does* have a catch-all of
>one year in prison or a fine if you make fewer than 10 copies
>or worth less than $2500 (as we've also been discussing).

Sorry, I think that the above was to explain that mens rea (criminal
intent) was not the only requirement in violating the law.

P.S. S 893 became PL 102-561 when signed by Bush on 10/28/92.

The reason that criminal intent scares me a little is
that the term "willful" has not been adequately defined. As I mentioned
in an earlier posting, a senior prosecutor in the U.S. Attorney's
Office in Denver indicated that they would define the term to mean 
that the "Perp" willfully performed the act that ultimately
turned out to infringe, not that he knew that he was infringing
and willfully infringed anyway. Despite the legislative history
pronouncements to the contrary, this could result in prosecution
in what would normally be considered a commercial case (read
Lotus v. Borland or Gates v. Bando here in Colo.). 

The problem in software copyright cases is that the law is unsettled.
What is considered infringement in one district or one circuit is
not considered infringement in another. I believe that Lotus v. 
Borland might have gone the other way with a different judge (not
already predisposed by his Lotus v. Paperback decision), or in a 
different circuit. In particular, compare that decision to those
in the 2nd and 9th circuits this year. 

This problem is compounded in civil litigation with the recent 
liberalization of corporate venue (28 U.S.C. Section 1391(c))
which gives the plaintiff almost a national choice of forum.

The problem still exists in criminal law. The major criteria appears
to be whether you can get a U.S. Attorney interested in the case.
This is a two prong problem: firstly political, secondly whether
he thinks he can get a conviction. The latter would be determined
to a great extent on how "willful" was defined in his circuit, and
how liberal the software copyright infringement decisions have been.

In any case, the House Judiciary Committee's refusal to define the
term "willful" has I believe greatly complicated the subject.

Bruce E. Hayden
(303) 758-8400
bhayden@csn.org

Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: strnlght@netcom.com (David Sternlight)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Thu, 19 Nov 1992 09:27:52 GMT


Glenn Tenney suggests that copying HBO movies for personal time shifting
purposes (assuming one has paid for HBO) is private financial gain to the
tune of the cost of the commercial tape version of the movies.

I wonder. Since one has already paid the HBO fee, which entitles one to
"n" viewings (however many times HBO shows the thing), though there
is a gain in convenience, it's not clear there's financial gain.

-- 
David Sternlight
(pgp 2.0 and ripem public keys available on request)

Xref: sparky misc.legal.computing:2299 comp.org.eff.talk:7151 misc.int-property:1480
From: mab@wdl39.wdl.loral.com (Mark A Biggar)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Date: 20 Nov 92 22:22:05 GMT
Organization: Loral Western Development Labs

In article <1992Nov20.164818.14414@netcom.com> strnlght@netcom.com (David Sternlight) writes:
>To expand the discussion, what about the common practice of copying
>tapes one already owns, in order to have a copy in the car and one
>at home, both for personal use?

If you arrange it so that it is impossible for both copies to be in use
at the same time you may be okay, but that is questionable.

The "Fair Use" provisions in the copyright law allow copies materially
necessary to the use of the item in question.  (i.e this is why the
copy of a program from disk to memory so you can run it is not a
copyright violation).  This probably means that coping a CD to cassette
so that you can play it in the car is okay, while coping a cassette to
another cassette to play in your car is probably not okay because you could
have just played the original tape and the copy is not materially necessary.

One way around this (also allowed by the "fair use" exceptions) is the
master archive copy method.  You buy a tape, make a single copy for playing
purposes and lock the original up.  You can have only one copy in existence
at a time and the only thing you use the original for is to make replacement
copies when ever the playing copy breaks or become unplayable.  But be sure
to destroy the last playing copy before making a new one.  A lot of
Churchs do this with pre-recorded accompaniment music to avoid having to
buy a new copy when even the old one wears out or is lost.

Also making a copy to replace something that you once owned, but has been 
lost or destroyed is also okay under the "fair use" exceptions.
 
--
Mark Biggar
mab@wdl1.wdl.loral.com
Xref: sparky misc.legal.computing:2302 comp.org.eff.talk:7154 misc.int-property:1483