Oh, the trials of LaMacchia

Rohit Khare (khare@mci.net)
Thu, 26 Jun 1997 19:21:28 -0400

[I can think of at least one FoRKer who should have brought this to our
attention sooner :-)]


LaMacchia's Revenge
by Declan McCullagh June 25, 1997

David LaMacchia's pirate warez site once hummed quietly along on a
DECstation 5000 just down the hall from the study lounge on the top floor
of MIT's Stratton Student Center. LaMacchia claims its original purpose was
to let visiting netizens exchange software. But soon -- either inevitably
or intentionally, depending on whom you believe -- more and more
copyrighted programs began to appear.

This was enough to prompt the federal government to charge the MIT
undergraduate in April 1994 with the crime of wire fraud. The indictment
argued that his FTP-like site permitted "on an international scale, the
illegal copying and distribution of copyrighted software, without payment
of software licensing fees." Yet a federal judge dismissed the case that
December, ruling that while LaMacchia was wrong -- and could be sued in
civil court -- the aspiring computer scientist was not guilty as charged.
Judge Richard Stearns said, "It is not clear that making criminals of a
large number of consumers of computer software is a result that even the
software industry would consider desirable."

Guess again. A group of software companies, including Microsoft and
Adobe, yesterday requested new laws to eliminate what they termed the
"LaMacchia decision" problem. When a warez site operates for free -- as
most do -- companies currently must sue for damages in a civil court. In
other words, giving that copy of Quake to your dad is not -- yet -- a
federal felony.

This must change, argues Microsoft counsel Brad Smith, who says the
law "needs to be strengthened" to make it a crime to "download illegal
software over the Internet." Kim Willard from the Business Software
Alliance says, "We're looking for a fix so that the law is applicable to
computer software. That's the part we're concerned about... I think it'll
deal with all copyrighted products. The bottom line is to create some

This push from the BSA and the Software Publishers Association comes
as their member companies have begun to complain more loudly about software
piracy and its impact on their bottom lines. A joint study released last
month claimed that the worldwide software industry lost more than $11
billion in 1996. On June 4 a pack of Siliconaires trekked to Washington to
schmooze with lawmakers and warn of the dangers of digital thieves picking
pockets on the Internet. The industry has also been flexing its political
muscle, pointing out to legislators that software firms provide $15 billion
in taxes per year.

Naturally, they argue that amount would be much higher if the law were
changed. A criminal law would be a "good investment from a fiscal
perspective," says Microsoft's Smith.

But important questions remain: How to balance copyright with free
speech? Does the punishment fit the offense? Should grade schoolers who
photocopy a textbook chapter or copy Microsoft Word be considered

Seth Finkelstein, webmaster for the MIT Student Association for
Freedom of Expression, says, "The process of turning civil copyright
disputes into criminal cases lets software companies force the taxpayers to
pay for arguing the businesses' side of the allegations." (After all,
Finkelstein wonders, can't such a rich industry afford its own Net cops?)

"Do we really want to criminalize the kind of dissemination of
information when a teacher makes a photocopy of a magazine article for his
or her students?" asks Harvey Silverglate, a Boston attorney who
represented LaMacchia and is the co-author of a forthcoming book about
freedom on college campuses. "Do we really want to criminalize someone who
makes a single copy or two of a program for a friend? After all, if the
friend is impressed by the program, he might buy the program just to have
the instruction book, or he may buy the upgrade."

"To over-criminalize infringements by penalizing not-for-profit
copying is to turn too much of everyday life into crime, and to turn too
many decent citizens into criminals. It's awful social policy, in addition
to being awful economic policy," Silverglate says.

The next move is the software industry's. They plan to hold hearings
in September before the House Judiciary Subcommittee on Courts and
Intellectual Property. And the committee chair, Rep. Howard Coble (R-NC),
seems to be on their side...