From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
Subject: Re: S893 - Copyright infringement a felony
Date: 17 Nov 92 01:28:58 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <bhayden.721924831@teal>, bhayden@teal.csn.org (Bruce Hayden) 
writes:
> On October 29, 1992, President Bush signed S 893 amending 18 U.S.C.
> Section 2319, making copyright infringement a possible felony if
>         "the offense consists of the the reproduction or distribution,
>         during any 180-day period, of at least 10 copies or
>         phonorecords, of 1 or more copyrighted works, with a
>         retail value of more than $2,500".
> 
> The Rocky Mountain Computer and Technology Forum will be discussing
> this new law on 11/20 especially as it applies to software copyrights. 
> I am one of the panelists in the forum, and need some help. I am an 
> attorney whose practice is limited to intellectual property matters.
> This means amoung other things that I have no criminal law background.
> 
> What would be helpful are your comments on the following:
> 1.      Do you read the law to require 10 copies _and_ $2,500?
>         Surprising there is debate on this issue.

This can be read either of two ways: 1) it requires 10 or more copies, the 
aggregate value of which is greater than $2500; 2) it requires 10 or more 
copies, each copy of which is valued at $2500.

It's tough to tell -- I'd have to look at the legislative history and/or 
debates.  Just as little more than a wild guess, I think it means the total 
value -- if it were a requirement that a single _work_ have a retail value of 
$2500, few works would qualify, and the statute would be a dead letter except 
for some exceptional cases.

I don't see a valid reading as being 10 copies _or_ having a value of >$2500.  
It takes to much to read "with" as meaning "or with".  My guess is that the 
basis for the argument for "or", if one exists, is that the predecessor 
statute (see below) had a series of scenarios leading to criminal liability, 
and used "or" to distinguish among them.  The new statute is more 
straightforward.

> 
> 2.      What is the criminal intent required ? Is this a general
>         intent or specific intent crime ?

S. 893 (well, we ought to call it PL 102-561 now) only updated 18 USC 2319 
(b).  To interpret this, you need to look the unaltered 18 USC 2319 (a), 
which states, 

     (a) Whoever violates section 506(a) (relating to criminal 
   offenses) of title 17 shall be punished as provided in subsection 
   (b) of this section and such penalties shall be in addition to any 
   other provisions of title 17 [Copyright] or any other law.  18 USC
   2319 (a).

17 USC 506(a) says,

     (a) Any person who infringes a copyright willfully and for 
   purposes of commercial advantage or private financial gain shall be
   punished as provided in section 2319 of title 18.  17 USC 506 (a).

Based on the use of "willfully", I'd say this calls for specific intent (17 
USC 101 does not include a special definition of "willful" for purposes of 
Title 17, so normal definitions apply; there might be a definition in Title 
18).
 
> 3.      Does the law apply to all copyright infringement ? Or
>         just of cases where exact copies are being made ?

I'd say any copyright infringement, so long as it meets the 17 USC 506(a) 
limitations.  The requirements for infringement are set forth in 17 USC 501, 
and, subject to some qualifications, state "Anyone who violates any of the 
exclusive rights of the copyright owner [as described in 17 USC 106 and 106A] 
 . . is an infringer of the copyright . . ."  Exact copies are limited to 17 
USC 106(1), and this definition is clearly more broad than that.

> 
> 4.      How does the answer to #2 effect the answer to #3 ?
>         In other words, how does the intent requirement help
>         determine what copyright infringement is covered ?

I don't think it's relevant to the types of infringement, so long as it was 
"willful".
 
> 5.      Comments on any other issues relevant to the new law.

This new law did not make copyright infringement a felony.  Copyright 
infringement already was a felony.  This law had the effect of changing the 
borders at which the infringement became a felony.  The previous requirement 
was:

 (b) Any person who commits an offense under subsection (a) of 
 this section--

   (1) shall be fined not more than $ 250,000 or imprisoned for
  not more than five years, or both, if the offense--

     (A) involves the reproduction or distribution, during any
   one-hundred-and-eighty-day period, of at least one thousand 
   phonorecords or copies infringing the copyright in one or more 
   sound recordings;

     (B) involves the reproduction or distribution, during any
   one-hundred-and-eighty-day period, of at least sixty-five copies
   infringing the copyright in one or more motion pictures or other  
   audiovisual works; or

     (C) is a second or subsequent offense under either of subsection 
   (b)(1) or (b)(2) of this section, where a prior offense involved
   a sound recording, or a motion picture or other audiovisual work;

   (2) shall be fined not more than $ 250,000 or imprisoned for not
  more than two years, or both, if the offense--

    (A) involves the reproduction or distribution, during any
  one-hundred-and-eighty-day period, of more than one hundred but 
  less than one thousand phonorecords or copies infringing the 
  copyright in one or more sound recordings; or

    (B) involves the reproduction or distribution, during any
  one-hundred-and-eighty-day period, of more than seven but less
  than sixty-five copies infringing the copyright in one or more 
  motion pictures or other audiovisual works; and

   (3) shall be fined not more than $ 25,000 or imprisoned for not
  more than one year, or both, in any other case.

    18 USC 2319 (1991).

PL 102-561 just "moves the fences in", as it were, lowering the number of 
requisite copies from 1000 to 10, and adding a value limit of $2500.


Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.
Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property