HDTenEightyP/NetNews huggingface dataset:
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
Keywords: copyright infringement felony
Date: 20 Nov 92 22:56:17 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Nov19.135827.12834@porthos.cc.bellcore.com>, 
whs70@dancer.cc.bellcore.com (sohl,william h) writes:
> I suspect that the courts, if a case ever was tried, would define
> "private financial gain" as meaning some way in which the
> individual "added" to his/her monetary savings. 

Bill, I agree with this comment (see my reply to Glenn), but,
 
> Given that statement and my understanding that audio home recording 
> has a history of being allowed (it was discussed during many
> congressional hearings and no one ever supported the notion that
> private, personal taping was or should be a violation of copyright),

I concede that I'm at risk here, because I'm not looking at the legislative 
history, but I don't think the history of allowing home _audio_ recording was 
traditionally allowed.  Until the Audio Home Recording Act of 1991 (PL102-
563), there was no firm docrtine that home _audio_ taping (as opposed to 
video) was fair use (though I personally believed that it was).

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
From: jeffrey@netcom.com (Jeffrey Kegler)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Sun, 22 Nov 1992 07:29:56 GMT

In article <1992Nov19.201021.28781@u.washington.edu> tzs@carson.u.washington.edu (Tim Smith) writes:
>whs70@dancer.cc.bellcore.com (sohl,william h) writes:
>>More importantly, in my opinion, is that while this discussion may
>>be fun, there's really no likelihood that anyone is going to be
>>sued by a recording company for any home taping.  If anyone knows
>>of a case, I'd sure like to hear about it.
>
>It happened in video recording.  When Disney and Universal sued Sony
>in the Betamax case, the actual list of defendants was:
>
>	Sony, ...
>	William Griffiths, a person who used a Betamax.
>
>Disney and Universal didn't ask for any damages from Griffiths, and he
>didn't actually appear or have an attorney, so it isn't that big a deal that
>he was included.  Still, I wonder if he was told this *before* being included,

He was very much aware, unlike the other defendants.  Mr. Griffiths
worked for a private detective agency, and was hired by the plaintiffs
to make himself a defendant.  Among the things he did for them was
walk into a randomly chosen, and unsuspecting, store and attempt
(successfully) to buy a Betamax.  It may have been thought that
without a named defendant who actually did taping, the suit might be
thrown out.  None of the other defendants were alleged to have
directly violated copyrights, simply to have enabled that act.  (I'm
not an attorny, so don't fully understand the reasoning.)  I don't
think the case at any point turned on the presence of Mr. Griffiths as
a defendant.

The above is my recollection from a _New Yorker_ piece in their
"Annals of Law" series.  I believe my recollection of it is accurate,
but some time has elapsed.

Jeffrey Kegler, Independent UNIX Consultant, Algorists, Inc.
jeffrey@algor2.ALGORISTS.COM or uunet!algor2!jeffrey
137 E Fremont AVE #122, Sunnyvale CA 94087
-- 
Jeffrey Kegler, Independent UNIX Consultant, Algorists, Inc.
jeffrey@algor2.ALGORISTS.COM or uunet!algor2!jeffrey
137 E Fremont AVE #122, Sunnyvale CA 94087
"Nitwit ideas are for emergencies.  You use them when you've got
nothing else to try.  If they work, they go in the Book.  Otherwise
you follow the Book, which is largely a collection of nitwit ideas
that worked." from the _Mote in God's Eye_ by Larry Niven and Jerry
Pournelle
Xref: sparky misc.legal.computing:2281 comp.org.eff.talk:7126 misc.int-property:1466
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
Keywords: copyright infringement felony
Date: 18 Nov 92 20:21:47 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Nov18.073328.281@netcom.com>, strnlght@netcom.com (David 
Sternlight) writes:
> 1. If a cable subscriber copies 100 movies from HBO (which he has paid
> to view), for the purpose of time-shifting and personal viewing, is
> this a violation?  Assume the value of each is either the value of a
> copy in a video store, or the value of the HBO subscription amortized
> over the number of movies transmitted.
> 
> 2. If a library patron takes out 100 audiotapes of either music or of
> courseware, and copies each one, for the purpose of listening at his
> convenience after returning the originals, is this a violation? Again
> assume that the copies are for personal use only.
> 
> Assume in both cases the value of the copies is greater than $2500, if
> they were purchased on the market, but that the costs are less than
> $2500 (in either HBO fees, or library fees)

I'd guess that the answer is "no" in each case, because the statute is 
specifically restricted to infringement "for purposes of commercial advantage 
or private financial gain".  The "personal viewing" and "for personal use 
only" qualifications in your hypotheticals take them out of this realm of 
criminal prosecution.

Furthermore, the time-shifting in hypothetical 1 has already been recognized 
as a fair use, so it's not an infringement of any type.  Hypothetical number 
2 is probably still an infringement, but one which can only be pursued in a 
civil action by the copyright owner.

This is, of course, not legal advice.

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.
From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Date: 24 Nov 92 01:29:01 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Nov19.172309.20014@panix.com>, oppedahl@panix.com (Carl 
Oppedahl) writes:
> In <8f4n02Ep2bk=01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry 
> Carroll) writes:
> 
> >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.

 
I think it does, Carl:

"Subject to sections 107 through 120, the owner of copyright under this title 
has the exclusive rights to do and to authorize any of the following:
   . . .
   (3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;
   . . ."

  17 USC 106


Now, s. 109 gives some out, but I'm not sure that it's enough.

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.
Xref: sparky misc.legal.computing:2274 comp.org.eff.talk:7108 misc.int-property:1460
From: mnemonic@eff.org (Mike Godwin)
Subject: Re: S893 - Copyright infringement a felony
Originator: mnemonic@eff.org
Keywords: copyright infringement felony
Organization: Electronic Frontier Foundation
Date: Fri, 20 Nov 1992 23:09:41 GMT

In article <1992Nov18.073412.492@netcom.com> tenney@netcom.com (Glenn S. Tenney) writes:

>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.

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*.

It is a mistake to suppose that 897 allows for someone to be an
unwitting criminal infringer.


--Mike



-- 
Mike Godwin,    |"I can solve this Orient Express thing without
mnemonic@eff.org| breaking a sweat. It's that simple."
(617) 864-0665  | 
EFF, Cambridge  |                           --Hercule Perot
Newsgroups: misc.legal.computing
From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Organization: Colorado SuperNet, Inc.
Date: Sat, 21 Nov 1992 05:08:57 GMT

rfranken@mcs213d.cs.umr.edu (Richard Brett Frankenberger) writes:

>In article <bhayden.722268596@teal> bhayden@teal.csn.org (Bruce Hayden) writes:
>>
>>Technically, formatting a diskette doesn't put anything on it, but...
>>The FORMAT command with the /s option does. That option causes the
>>program to make the diskette bootable, by copying the 3 system files
>>on to it. Try making a judge understand the difference..
>>

>Yes it does.  it:
> 
>(1) Creates a root-directory and some type-descriptions, etc.  These are almost
>certainly NOT copyrightable.
> 
>(2) It writes a boot sector out.  (Do a FROMAT A: and then boot-up.  You will 
>see a NOT A SYSTEM DISK or something like that message.  That comes from the
>code in the boot sector).  Is this code copyrightable? Probably, although
>I don't know if Microsoft cares if you use it.  I DO believe that microsoft
>objects to fully bootable disks being distributed (with MSDOS.COM, 
>IO.COm and COMMAND.COM on them).
> 
>Perhaps someone can comment on the boot sector code as to its protectedness.

You are right technically. Format creates amoung other things the root
directory, and the two FAT tables. It creates everything necessary to
make the diskette usable. Indeed, Norton quick format just recreates the
root directory, FAT tables, etc. instead of actually formatting the disk.

As to whether you can or cannot distribute bootable diskettes:
Yes, I will agree that command.com, etc. are protected by copyright.
That was never in doubt. That doesn't answer the question as to whether
or not you can send out bootable diskettes with them on the diskettes.
Microsoft's position is necessary selfserving: they would love for you
to pay a license fee for all the bootable diskettes that you create.
The question is then not Microsoft's selfserving postion, but whether
either 1) you have an implied license to do it, or 2) creating such
bootable diskettes is fair use.
 
Bruce E. Hayden
(303) 758-8400
bhayden@csn.org

Newsgroups: misc.legal.computing
From: oppedahl@panix.com (Carl Oppedahl)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Date: Mon, 16 Nov 1992 22:15:16 GMT
Organization: PANIX Public Access Unix, NYC

In <BxtDKB.10x@iat.holonet.net> phoffman@orac.holonet.net (Paul E. Hoffman) writes:

>I would say that you would absolutely be violating Microsoft's
>copyright. COMMAND.COM is an executable program just like any other
>program. Copying it without a license from the author is just like
>copying 1-2-3. The hidden files, while not directly executable,
>contain executable code that is called by other programs. Again,
>I believe that this would be considered protectable material.

Protectable, sure.  If copied without license from the publisher, yes
it would be violation of copyright.  But I think many commenters 
were talking about what might or might not be within the license that
you get from Microsoft when you buy your copy of DOS.

The language of the license matters.  For example, I just the other
day bought a copy of the Manual of Patent Examining Procedure
on Disk, available from the Patent Office for $50.  The license you
get includes loading it onto as many hard disks as you like.  The 
only restriction is on the number of floppy copies you can make of the
floppy disk distribution media (namely, only one backup which must
bear copyright markings).


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:2309 comp.org.eff.talk:7166 misc.int-property:1488
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
Keywords: copyright infringement felony
Date: 21 Nov 92 08:21:00 GMT
Article-I.D.: netcom.1992Nov21.082100.13810
Organization: Netcom - Online Communication Services (408 241-9760 guest)

In article <bhayden.722321744@teal> bhayden@teal.csn.org (Bruce Hayden) writes:
> ...
>Most of the circuits apparently use the first. However, one or more
>of them use the second. The problem is with the second is that C/R
>infringement of software is in such flux today that it is not allways
>that easy to determine copying. For example, Lotus v. Borland would
>have probably been decided differently in the 2nd or 9th circuit. 
>Note that Borland willfully created a spreadsheet with an (later
>determined) infringing 123 compatability mode. Would that constitute
>willfully for the criminal C/R statute? Yes, in some circuits.
>Today, we had a U.S. attorney (actually a senior prosecutor) tell
>us that that is how they would define it in the Colorado District.

My notes (I think these are from the legislative history) say:

"The mens rea requirement serves to leave outside the reach of the
criminal law losing parties in ordinary business disputes such
as those involving reverse engineering of computer programs or
contract disputes over the scope of licenses.  Felony liability
is not the result of every unauthorized reproduction or distribution...
First, infringement must be established.  Next, the Government must prove
that the infringement was done with the requisite mens rea.  Unless both 
these requirements are met, no criminal liability -- mesdemeanor or
felony -- will lie, regardless of the number of unauthorized copies or
phonorecords that have been reproduced or distributed.  In cases where
civil liability is unclear -- whether because the law is unsettled, or
because a legitamte business dispute exists -- the Committee does not
intend to establish criminal liability."



-- 
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: tenney@netcom.com (Glenn S. Tenney)
Subject: Re: S893 - Copyright infringement a felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Tue, 24 Nov 1992 05:47:18 GMT

In article <3bow02DV2czo01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>In article <1992Nov21.080420.12191@netcom.com>, tenney@netcom.com (Glenn S. 
>Tenney) writes:
>> >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.
>
>I don't think so.  To the best of my knowledge, the 2319 has had only two 
>versions: the one I posted, and now the update from PL102-561.  The copy of 
>2319 I pulled from the USCS (prior to the 102-561 update) in its history says 
>only:
>
>HISTORY: (Added May 24, 1982, P.L. 97-180, @ 3, 96 Stat. 92.)
>
>If there'd been updates, they'd be listed here.

The copy I have (albeit older) says:
18 USC 2319(c)(2)
the terms "reproduction" and "distribution" refer to the
exclusive rights of a copyright owner under clauses (1) and (3)
respectively of section 106 (relating to exclusive rights in
copyrighted works), as limited by sections 107 through 118, of title
17. (Amended May 24, 1982, PL 97-180, sec 3, 96 Stat 92.)

We're not disagreeing, and this is (I thought) a fairly small
point...
-- 
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: Thu, 19 Nov 92 13:58:27 GMT
Keywords: copyright infringement felony

In article <1992Nov19.083656.11920@netcom.com> tenney@netcom.com (Glenn S. Tenney) writes:
>In article <b7Ur022K2bvE01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>>I'd guess that the answer is "no" in each case, because the statute is 
>>specifically restricted to infringement "for purposes of commercial advantage 
>>or private financial gain".  The "personal viewing" and "for personal use 
>>only" qualifications in your hypotheticals take them out of this realm of 
>>criminal prosecution.
>
>Except that by making 100 copies for personal use, you are doing
>so for 'private financial gain' -- to wit, saving the $1300 you would
>have had to spend to BUY those tapes.  Sure sounds like private
>financial gain to me...
>Glenn Tenney

I suspect that the courts, if a case ever was tried, would define
"private financial gain" as meaning some way in which the
individual "added" to his/her monetary savings.  I do not think
that the courts would so broadly interpret "financial monetary GAIN"
to include anything one does to avoid expending money.  To do so
would require the court (IMHO) to assume that the 100 original
tapes/recordings would have been purchased had not the home taping
been done.  There's no eveidence, studies, etc. to support that
contention or conclusion.

More importantly, in my opinion, is that while this discussion may
be fun, there's really no likelihood that anyone is going to be
sued by a recording company for any home taping.  If anyone knows
of a case, I'd sure like to hear about it.  In fact, there is express
language in the Audio Home Recording Act of 1991 (the new SCMS law)
that says: "nothing in this chapter (ACT) shall be construed to
expand, limit or otherwise affect the rights of any person with
respect to private home copying of copyrighted works,...."

Given that statement and my understanding that audio home recording 
has a history of being allowed (it was discussed during many
congressional hearings and no one ever supported the notion that
private, personal taping was or should be a violation of copyright),
I again state that there isn't any real possibility that anyone is going
to be sued or prosecuted for making recordings for their own use.

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,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: Sat, 21 Nov 1992 20:43:36 GMT

tenney@netcom.com (Glenn S. Tenney) 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?

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. 

Think of criminal law as a checklist - a list of the requirements
for the crime. In this case the checklist would look like this:
	1.	Willful intent..
	2.	Commercial gain, etc.
	3.	At least 10 copies of 1 or more works
	4.	Value >= $2,500
The state (U.S. Attorney) must show all of the above to prove the crime.
Failure to prove any of the above (beyond a reasonable doubt)
necessitates a not guilty verdict.

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

Xref: sparky misc.legal.computing:2266 comp.org.eff.talk:7095 misc.int-property:1452
From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Criminal intent  was Re: S893 - Copyright infringement a felony
Originator: mnemonic@eff.org
Keywords: copyright infringement felony
Organization: Electronic Frontier Foundation
Date: Sat, 21 Nov 1992 15:05:26 GMT

In article <1992Nov21.081134.12944@netcom.com> tenney@netcom.com (Glenn S. Tenney) writes:

>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.

It's not that willfulness is itself criminal, Glenn. It's that if you
are willful with regard to the elements of the crime, as specified in the
statute, you have the requisite criminal intent (mens rea).

Thus, you normally have to have the "willfully" state of mind with regard
not only to making the copies, but also with regard to the other elements
of the crime as specified in the statute, such as doing it for gain.


--Mike



-- 
Mike Godwin,    |"I can solve this Orient Express thing without
mnemonic@eff.org| breaking a sweat. It's that simple."
(617) 864-0665  | 
EFF, Cambridge  |                           --Hercule Perot
From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Date: 17 Nov 92 22:39:42 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

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.

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