HDTenEightyP/NetNews huggingface dataset:
From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Colorado SuperNet, Inc.
Date: Sat, 21 Nov 1992 04:55:44 GMT

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*.

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

The problem is defining willfully. Unfortunately it is not consistently
defined. There are two definitions: 
1) you knew that you were infringing the copyright, and
2) you willfully did the act that turned out to infringe the C/R,
but you did not think that you were copyinig.

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.

Bothered by the abovementioned difference in the definition of
willful, the House subcommittee on intellectual property added
a section that defined willful (using definition #1 above). 
The House judiciary committee removed the definition. Sen. Hatch
apparently agreed with the removal when the bill got back to the Senate.

Bruce E. Hayden
(303) 758-8400
bhayden@csn.org
From: phoffman@orac.holonet.net (Paul E. Hoffman)
Newsgroups: misc.legal.computing
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Date: 23 Nov 92 17:12:02 GMT
Organization: HoloNet (BBS: 510-704-1058)

Bruce, I think you're missing something here. It is not really up to
you to decide whether or not there is an implied license. That's really
a judge's call, not one of the parties in a case. Me, I'd guess that
it is the ***very*** rare judge who would understand what is going on
in this case.

As for fair use issue, I don't think giving some software (COMMAND.COM)
to someone else who could then boot their computer when they couldn't
before is "fair use". To me, that's like giving someone a cassette tape
of an album that they didn't have.

>>Paul Hoffman

This is not legal advice, but I don't think it is illegal advice either.
-- 
||  Why qoute someone else?  ||
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: Sat, 21 Nov 1992 09:06:56 GMT

In article <1992Nov21.085915.15746@netcom.com> strnlght@netcom.com (David Sternlight) writes:
>
>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.

I, too, am not an attorney, but let me try a different way of
presenting my position:

If you go out and steal a car, have you not done something for
personal financial gain?  The argument "I wouldn't have bought
the card anyway..." would never fly -- it would be viewed as
grand theft auto regardless.

Or...  If you steal food from the local supermarket, enough for
breakfast, lunch, and dinner every day for a year, haven't you
gained financially?

This is not quite the same thing as the economic opportunity cost.
These reflect true personal advantage.

Well, so much for us non-lawyers -- is there any case law out there
that would clear this up?  If you steal something worth $10,000
and you keep it, have you done something for personal 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
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: Wed, 18 Nov 1992 07:33:28 GMT


Glenn Tenney seems to speak somewhat authoritatively about the new
copyright violation penalties. This leads me to a few questions:

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)

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

Xref: sparky misc.legal.computing:2327 comp.org.eff.talk:7198 misc.int-property:1506
From: amdunn@mongrel.UUCP (Andrew M. Dunn)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Organization: A. Dunn Systems Corporation, Kitchener, Ontario, Canada
Date: Thu, 19 Nov 92 15:04:52 GMT

In article <1992Nov15.000644.26308@panix.com> oppedahl@panix.com (Carl Oppedahl) 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?
>
>Well, let's think this through.  How did you make the bootable disk?
>Using MS-DOS?  Then the answer is probably in the copyright license
>document you got from Microsoft.

Yup.

>I haven't looked, but I would guess that built into the license you 
>get from the publisher of the operating system is a license to format
>(and make bootable) all the disks you want.

Format, yes.  Boot, no.

Formatting doesn't make a copy of anything Microsloth gave you.
It just sets up a blank disk with a certain pattern, and Microsloth
doesn't hold copyright on a blank disk.  I'm sure of it.

However, they do hold copyright on all of the executable programs
they provide to you.  Making a disk bootable puts several of those
programs onto the disk.

You've just infringed their copyright, I'll bet.

>The answer could change if you use a disk duplicating machine to make
>the disks.

Can't be.  Copyright has nothing to do with HOW the copies are
made.  It deals in whether copies are made or not.  If they are allowed,
you can make them any way that's convenient.

>THIS IS NOT LEGAL ADVICE!!!!!!

Neither is this.
-- 
:-------------------------------------------------------------------------:
:  Andy Dunn           <amdunn@mongrel.UUCP> or <dunn5177@mach1.WLU.CA>   :
:  "AT&T thinks Usenet is an Underground organization" - are we really?   :
:-------------------------------------------------------------------------:
Newsgroups: misc.legal.computing,misc.int-property
From: srctran@world.std.com (Gregory Aharonian)
Subject: New Patent Office Advisory committee
Organization: The World Public Access UNIX, Brookline, MA
Date: Mon, 16 Nov 1992 02:17:44 GMT


    The Patent Office is forming a new Advisory Committee.  Here's an
announcement for the Committee, which appeared in the October 27, 1992,
issue of the PTO Gazette.

Gregory Aharonian
Source Translation & Optimization
_____________________________________________________________________________

    In accordance with the provisions of the Federal Advisory Committee Act,
5 USC App 2, and the General Services Administration rule on Federal Advisory
Committee Management, 41 CFR part 101-6, and after consultation with GSA, the
Secretary of Commerce has determined that the establishment of the Advisory
Committee for Patents is in the public interest in connection with the
performance of duties imposed on the Department by law.
    The Committee will advise the Patent and Trademark Office on a broad range
of policy and operational matters related to the administration of the Office.
The Committee will consist of at least ten but no more than eighteen members
to be appointed by the Assistant Secretary and Commissioner of Patents and
Trademarks to assure a balanced representation among patent practitioners,
corporate executives, research directors, inventors, the judiciary,
professional patent searchers, information specialists and publishers,
automation experts, consumer groups, entrepreneurs, and educators.
    The Committee will function solely as an advisory body, and in compliance
with provisions of the Federal Advisory Committee Act.  The charter will be
filed under the Act, fifteen days from the date of publication of this notice.
    Interested persons are invited to submit comments regarding establishment
of this Committee to the Commissioner of Patents and Trademarks, Washington,
DC, 20231, Attention: Edward R. Kazenske, Room 906, Crystal Park 2;
703-305-8600.
-- 
**************************************************************************
Greg Aharonian
Source Translation & Optimiztion
P.O. Box 404, Belmont, MA 02178
Xref: sparky misc.legal.computing:2293 comp.org.eff.talk:7148 misc.int-property:1477
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 22:21:18 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Nov19.083656.11920@netcom.com>, tenney@netcom.com (Glenn S. 
Tenney) writes:
> Except that by making 100 copies for personal use, you are doing
> so for 'private financial gain'

I don't think that mere avoidance of a potential purchase would satisfy the 
requirement of "for purposes of commercial advantage or private financial 
gain".  I think the courts would look to something much more affirmative, 
i.e., a sale.

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: 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 07:53:47 GMT

In article <80QS02AR2beP01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
> ...
>The law does not mention "copying".
>
>It does mention "copies"

True.  My fault.  Too computerish of me -- I see "copies" and translate
it to "copying".  I should have referred to the actual text instead
of my memory.

>Since the act teh statute complains of is violation of 17 USC 506(a), and 
>506(a)'s prohibits "infringement", which is defined (in 17 USC 501) as any 
>violation of the exclusive rights defined in 17 USC 106, only one of which is 
>the right "to reproduce the copyrighted work in copies of phonorecords", I 
>can't see construing the statute to include only exact copying.  Of course, 
>if I was defendant's lawyer, I'd certainly argue the point.  :-)  I'd 
>probably try to hang the argument on the fact that 106(1) and 106(3) 
>(restricting distribution) are the only 106 subsections to refer to "copies", 
>so this statute can only be meaningfully applied to those rights.  But I'd 
>expect to lose.

As to the infringement issue:  I see your point that 501 is tied to 506
(sheesh, I had to go back and re-read it!) making ANY infringements
potentially criminal.  If that were so, then there MUST be some case
law of criminal prosecutions of some infringements other than exact
copying.  I can't recall any, but I don't have access to Lexis.
I would think that many of the copyright infringement cases
(not just software, but music and film) that have made it to
the media would have seen criminal prosecution if that were possible.

>Not a bad counter example, but I think Microsoft can't be convicted because 
>their intent is not "willful" -- they had no specific intent to infringe the 
>copyright, and so are not liable under 506(a).  Interesting food for thought, 
>though.

This may be a Criminal Law 101 question, but what is WILLFUL?  If "X"
knowingly copies (exact or not) "Y"'s copyrighted property, but
did not think they were infringing, is that a willful infringement?
In other words:  If Borland knowingly makes a product that looks and
feels like, say a Lotus product, and it turns out to have been a
copyright infringement, is that a WILLFUL infringement?  They surely
did it knowingly.  They surely did it for commercial gain.

????????


-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
tenney@netcom.com          Ham radio: AA6ER
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: Tue, 24 Nov 1992 05:06:43 GMT

phoffman@orac.holonet.net (Paul E. Hoffman) writes:

>Bruce, I think you're missing something here. It is not really up to
>you to decide whether or not there is an implied license. That's really
>a judge's call, not one of the parties in a case. Me, I'd guess that
>it is the ***very*** rare judge who would understand what is going on
>in this case.

You are making two points here. First, implied license is a defense,
just like fair use. If you are charged with C/R infringement, you
would plead it just like any other affirmative defense. So...
working backwards, you could advise your client that copying would
infringe if not for the implied license. If I can honestly plead
an implied license, then I can advise a client that he would be
entitled to one if the situation warrents.

Secondly, I would agree that most judges, including Federal district
court judges invariably would not have a clue. But then you are arguing
reality versus theory. If you want to argue reality, then ask yourself
how far Microsoft is going to get in court trying to get paid for 
another license, when invariably both the creator and reciepient of
the diskette with the system files invariably have legitimate copies 
of DOS. 

>As for fair use issue, I don't think giving some software (COMMAND.COM)
>to someone else who could then boot their computer when they couldn't
>before is "fair use". To me, that's like giving someone a cassette tape
>of an album that they didn't have.

But you are making a significant assumption - that the person who you
give the diskette to does not have a licensed copy of DOS. That is
highly unlikely. Remember, before DOS 5.0, you could not buy DOS from
Microsoft, rather you had to get it from the PC manufacturer. Sure,
there are bootleg copies of DOS out there. But .. compared with other
programs, I think you will find that the vast majority of PCs out ther
have legitimate copies. Indeed, in many of the cases that I know of
DOS is the _only_ legitimate software the owner of a PC has. 

One reason the DOS dynamics have changed is that almost all PCs now
have hard drives, with DOS permanently installed. How many people do
you know that still use floppy based systems?  

So, I would contend that the fair use arguement changes - If you
can reasonably assume that the person that you are creating the 
diskette for already has DOS, then you can make a fair use argument.
But...if you can't make that assumption, then you can't make the
same fair use argument. 

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

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: Sun, 15 Nov 1992 22:19:01 GMT

oppedahl@panix.com (Carl Oppedahl) 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?
>Well, let's think this through.  How did you make the bootable disk?
>Using MS-DOS?  Then the answer is probably in the copyright license
>document you got from Microsoft.
>I haven't looked, but I would guess that built into the license you 
>get from the publisher of the operating system is a license to format
>(and make bootable) all the disks you want.
>The answer could change if you use a disk duplicating machine to make
>the disks.

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.

Again, this is not legal advice.

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

Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: tenney@netcom.com (Glenn S. Tenney)
Subject: Re: Criminal intent was Re: S893 - Copyright infringement a felony
Keywords: copyright infringement felony
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Sun, 22 Nov 1992 06:12:32 GMT

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).


-- 
Glenn Tenney
voice: (415) 574-3420      fax: (415) 574-0546
tenney@netcom.com          Ham radio: AA6ER
Newsgroups: misc.legal.computing
From: phoffman@orac.holonet.net (Paul E. Hoffman)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Organization: HoloNet (BBS: 510-704-1058)
Date: Mon, 16 Nov 1992 14:57:46 GMT

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.

On the other hand, this may be considered below the threshold that the
owner would consider for action. On the other other hand (or the third
hand, depending on you mutation), the owner is Microsoft.

This is legal advice, but it is given by an amateur. Follow at your
own risk/reward.

>>Paul Hoffman
-- 
||  Why qoute someone else?  ||
Newsgroups: misc.legal.computing
From: komarimf@craft.camp.clarkson.edu (Mark 'Henry' Komarinski)
Subject: Re: DOS Format: Does it infringe Copywrite Laws?
Organization: Clarkson University
Date: Mon, 16 Nov 1992 03:24:16 GMT

oppedahl@panix.com (Carl Oppedahl) 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?

>Well, let's think this through.  How did you make the bootable disk?
>Using MS-DOS?  Then the answer is probably in the copyright license
>document you got from Microsoft.

>I haven't looked, but I would guess that built into the license you 
>get from the publisher of the operating system is a license to format
>(and make bootable) all the disks you want.

>The answer could change if you use a disk duplicating machine to make
>the disks.

>THIS IS NOT LEGAL ADVICE!!!!!!
>SEE A LAWYER IF THIS ACTUALLY MATTERS TO YOU!!!!!

This all kind of comes down to the type of distribution you are referring 
to.  If you are distributing the disks to PC's that do not already have
DOS 5.0, then it is against copyright law.  Check out all the PC games 
that came out way-back-when that make you create a boot disk using
your own DOS diskettes.  You can't legally distribute DOS to people.

If you're talking about distributing to a group of people that you know
and can prove that already have DOS 5.0, then they could have made the
bootables themselves and the point is moot.

-Mark

--
- Mark Komarinski - komarimf@craft.camp.clarkson.edu
[MIME mail welcome]
Credo quia absurdum est - "I believe because it is absurd"

Newsgroups: misc.legal.computing,comp.org.eff.talk,misc.int-property
From: tmg@panix.com (Thomas Genereaux)
Subject: Re: S893 - Copyright infringement a felony
Date: Wed, 18 Nov 1992 05:42:34 GMT
Organization: PANIX Public Access Unix, NYC

In <1992Nov17.081556.15591@netcom.com> tenney@netcom.com (Glenn S. Tenney) writes:

>In article <61O602Ie2b3z01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>>In article <bhayden.721924831@teal>, bhayden@teal.csn.org (Bruce Hayden) 
>>
>>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 

>I don't have the original handy right now, but my recollection is
>VERY different from this.  If you look at the parts you quoted
>from the prior law, it referred to soundrecordings (ie. records
>and other works made using (P), and *not* to software).

>In other words:  The prior law made piracy of records and tapes
>a felony, but the new law ADDS software to the list -- and moves
>-- 
>Glenn Tenney
>voice: (415) 574-3420      fax: (415) 574-0546
>tenney@netcom.com          Ham radio: AA6ER

And what about "fair use?" Or network backups - or your *own* backups?
As I read the law the other day, all are in fact illegal.

Xref: sparky misc.legal.computing:2279 comp.org.eff.talk:7116 misc.int-property:1464