Re: House Consdiers bill to make copying software a felony

Brian A. LaMacchia (
Tue, 05 Aug 1997 12:15:25 -0400

At 06:19 PM 8/5/97 +0300, Ron Resnick wrote:
>>The SPA wants to find a way around the LaMacchia Exemption, which
>>exempts software copying from criminal prosecution
>>unless it is willful and for profit.
>So is it a felony offense to Forkpost the full text of a copyrighted
>news article dealing with bit-copying felonies? ;-)

Yup, it certainly is, or will be if Goodlatte gets his way. This bill is
the SPA's wet dream, but it's going to be a nightmare for everyone else.

A couple of interesting points.

1) Leahy tried something similar last Congress where he attempted to make
willful infringement over $5K a crime and over $10K a felony (I think I
have those limits right). However, even in that hyped environment (shortly
after Judge Stearns's decision
<>, Bruce Lehman wanting
to copyright everything in sight, etc.), he didn't attempt to criminalize
small-$$$, non-profit infringements. Under the Goodlatte bill, even a
single willful infringement is a 1-year misdemeanor, and Ron's last article
could get him tree years at Club Fed.

2) Notice that under this bill one could commit a crime and not know it
until after a fair use hearing in court. That is, consider the following
secnario. I get hold of some document with which I disagree (say, some of
the NOTS stuff from the Church of Scientology), and I write up a critique
of said document, liberally quoting from it as I go along. I post my
critique on the Web, and more than 10 people visit the page within 180
days. The Church sues me in court for civil infringement and gets a
friendly AUSA to indict me (Federal felony, the big leagues) for criminal
infringement. I claim fair use; if I win my claim I win both cases (civil
& criminal). If I lose the fair use claim, I go to Club Fed.

I don't know if I'll win my fair use claim until I go to court. If I lose,
I'm not just out some money to the CoS or have to take down my Web page
under court injunction, I'm a felon. Talk about chilling speech...

3) Now, couple this bill with Coble's bill that wants to grant passive ISPs
limited immunity civil infringement claim if they do "notice & takedown"
(i.e. as soon as a copyright holder puts the ISP on notice that it's
harboring infringing stuff, the ISP gets rid of it), and throw in some
Usenet flamewars. Throw in some threats of criminal prosecution. Sprinkle
some "prosecutorial discretion." Mix.

"The Exemption's brother"

P.S. Don't you love how a carefully-crafted balance, made by Congress over
a couple hundred years, now becomes "an exemption"? Congress has always
tread carefully around copyright because (at least, until recently)
everyone agreed that copyright was a rights balance,
"copyright-as-propriety" as Pam Samuelson puts it. Now the exploiter class
(publishers, etc.) is winning the mindshare war and convincing people that
it's "copyright-as-commodity" and that they are *entitled* to complete
control as matter of right and not because copyright is really a
legislative grant.