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: 23 Nov 92 19:54:52 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

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.

> 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).
> 
> 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 either of us disagree with the CBO.  My point was that "all 
other cases" fell into the 2319(c) category, which is limited to a penalty of 
a fine less than or equal to $25000 and a term of imprisonment of less than 
or equal to one year.  As I was taught iy, a felony is a crime punishable by 
more than one year's imprisonment.  So, right, a criminal infringement that 
falls through to the catch-all provision is merely a misdemeanor.

> 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.

Maybe, and that's a good point.  If I were a betting man, I'd bet that way.  
However, the 1976 copyright act was a complete rewrite of the 1909 Act (the 
sections didn't even match up any more), so it's possible that the contrast 
between the old and new versions isn't really meaningful.  If it is, the 
Legislative HIstory would probably note it, though (I haven't checked).

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