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: 17 Nov 92 20:59:30 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1992Nov17.082904.16242@netcom.com>, tenney@netcom.com (Glenn S. 
Tenney) writes:
> >2.      What is the criminal intent required ? Is this a general
> >        intent or specific intent crime ?
> 
> No criminal intent needed.  Willfully making the copies for "gain",
> but nothing about criminal intent.

"Willful" is the particular instantiation of the criminal intent (the "mens 
reus" in criminal law terminology.  Intent is required, the question is 
whether it is specific (the intent to infringe), or general (the intent to 
commit the act that is shown to be infringement).

> >3.      Does the law apply to all copyright infringement ? Or
> >        just of cases where exact copies are being made ?
> 
> Since the law only mentions "copying", I would guess that some company
> would be happy to go after someone who 'copies the A/V copyright'
> of a piece of software.  The intent was definitely to be making
> exact copies, though.

The law does not mention "copying".

It does mention "copies", which should probably be construed according to the 
definition in Title 17 (Copyright):

    "Copies" are material objects, other than phonorecords, in which
    a work is fixed by any method now known or later developed, and
    from which the work can be perceived, reproduced, or otherwise
    communicated, either directly or with the aid of a machine or 
    device. The term "copies" includes the material object, other 
    than a phonorecord, in which the work is first fixed." 17 USC 101.

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.
 
> I hadn't thought about that aspect before (having only considered
> making an exact copy), but if this law had been in effect long ago,
> I could imagine that Apple would have gone after Microsoft on felony
> charges for "copying" their copyrighted software.  A bit farfetched,
> but...

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.

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