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: 21 Nov 92 08:04:20 GMT
Article-I.D.: netcom.1992Nov21.080420.12191
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <cdde02232bzR01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>In article <1992Nov18.081414.4874@netcom.com>, tenney@netcom.com (Glenn S. 
>Tenney) writes:
>> And 2319(c) limits which exclusive rights we're talking about
>> (to 106(1) and (3) only excluding derivative works, performances,
>> and public displays).
>
>2319(c) did not limit which rights to which 2319 as a whole applies.  It only 
>serves to define the terms used in 2319(b) which would otherwise be undefined 
>in Title 18.  Here's how 2319(c) looked prior to its recent update:
> ...
>In no way does this subsection limit 2319(b)(3).

oops, I guess I was looking at the version of 2319 before that...
In that one, (c) said that only 106(1) and (3) applied.  That is
still true, but the numbering must be different (ie. the felony
can only apply to reproduction or distribution rights, infringing
derivative rights / public performance rights is still only
a misdemeanor).

>
>> 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.
>
>In the absence of some pretty persuasive legislative history, I don't think 
>that that conclusion is correct;  but I've seen less likely interpretations 
>from judges of other laws, so who knows?

The history and notes I have (now who wrote them...???) says:
"If the defendant failed to make the requisite number or value
of copies within the 180 day perios, but still engaged in the
infringing conduct with the requisite mens rea, section 2319(b)(3)
subjects the defendant to a term of imprisonment of not more than
one year or a fine...".  

That sure sounds to me like someone was trying to say that (1) and (2)
set limits regarding specific types of works, and that (3) is the
fallback to cover the case where that type of work was infringed, but
the limits were not met.

Unfortunately, that does not appear to be what was actually written.
The next couple of paragraphs (in this posting) may make it more clear...

>
>> 
>> 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.
>
>Well, remember that it still has to meet the requirements if 17 USC 506(a) -- 
>willful and for purposes of commercial advantage or private financial gain.
>

In reading the Congressional Budget Office report on S893, signed
by Robert D. Reischauer, dated 2 October 1992, it DOES apply to
*all* copyrights:

"Under current law, only certain offenses involving copyright violations of
sound recordings or audiovisual works are felonies, while all other copyright
violations are misdemeanors.  S. 893 would change the criteria for
determining whether a copyright violation involving sound recordings or
audiovisual works is a felony offense.  In addition, the bill would apply
the same criteria to all copyright violations, not just those involving
sound recordings or audiovisual works."

Hell, if the CBO reads it that way, who am I do disagree!!!

>I don't think that definition of "private fiancial gain" would fly.  However, 
>I do agree with you that the law, as it stood prior to PL102-561, is unduely 
>harsh, and that may have been part of the impetus to reframe it.

Again, from various notes...   "The mens rea is described as
infringement done "willfully and for purposes of commercial advantage
or private financial gain."  The term "willfully," although
used in copyright statues since 1897 for criminal violations,
has never been defined."   I could not find any definition
of "private financial gain".  As a matter of fact, the notes
I have mention that the 1976 changes to the copyright act
changed the wording, without explanation, from "willful and
for profit".  That sure sounds to me like "profit" is no longer
considered part and parcel to financial gain.



-- 
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