Re: Congress closes the 'LaMacchia loophole' -- NOT!

Brian A. LaMacchia (
Thu, 20 Nov 1997 13:41:29 -0800

Here's what I sent back to Declan & fight-censorship in follow-up:

<paraindent><param>left</param>Date: Thu, 20 Nov 1997 11:55:08 -0800

From: "Brian A. LaMacchia" <<>


Subject: Re: FC: More on new U.S. copyright crime

Of course, to fully appreciate the impact of this new legislation you

to tie it back to the First Amendment and the potential chilling HR

will have on critical speech. Because "fair use" is a defense to a

of infringement that requires fact-finding (that is, a judicial

we now have the possibility that willful copying done for purposes of

commentary or criticism may be found after-the-fact not to be "fair

and thus subject the speaker to criminal prosecution. (Yes, the stakes

now much higher in a "fair use" hearing.)

So, before you go quoting Co$ scripture in a netnews post (or even a

article, it'll still put you over the retail value threshold), you best

sure you're going to win a four-factor fair use hearing or you might

end up visiting Club Fed.



The really interesting part, though, is when you start hunting through
the Cong. Record. Check out the committee report, like the part about
what this new law will cost the government, essentially, "it'll enable a
few more prosecutions, but we can get $25K-$50K in fines from each one we
win." These are non-profit infringements! There's no money to seize!
Poor Johnny, now a Photoshop felon, doesn't have any assets to seize...

This bill got passed in the House under cover of darkness (suspension of
the rules) on Nov. 4. Gets sent over to the Senate, which (a) sends it
Judiciary, (b) gets it approved by unanimous consent in Judiciary, and
(c) approves in on the floor of the Senate by unanimous consent.

At 12:33 PM 11/20/97 -0800, Rohit Khare wrote:


>[Sigh. This is really ridiculous legislation. The crime is in the

>Otherwise, leave it to the civil section. Let 'em go redirect their

>dollars to ferreting out their foes, like A. F. Rifkin's mixtapes





>Date: Thu, 20 Nov 1997 12:02:39 -0500


>From: Declan McCullagh <<>

>Subject: FC: More on new U.S. copyright crime


>Congress has voted to make not-for-profit copyright infringments a

>felony, as I write in my article at:




>A Federal court in _LaMacchia_ noted that: "Since 1897, when criminal

>copyright infringement was first introduced into U.S. copyright law,

>concept differentiating criminal from civil copyright violations has

>that the infringement must be pursued for purposes of commercial



>The Supreme Court in Dowling v. United States, 473 U.S. 207 (1985)


> ...Interference with copyright does not easily equate with

> theft, conversion or fraud. The Copyright Act even

> employs a separate term of art to define one who

> misappropriates a copyright: "Anyone who violates any

> of the exclusive rights of the copyright owner..." [...]

> The infringer invades a statutorily defined province

> guaranteed to the copyright holder alone. But he does not

> assume physical control over the copyright; nor does he

> wholly deprive its owner of its use. While one may

> colloquially like infringement with some general notion

> of wrongful appropriation, infringement plainly

> implicates a more complex set of property interests than

> does run-of-the-mill theft, conversion or fraud.


>This now changes. For the first time in the history of the U.S.,

>noncommercial copying will be a crime.


>- -Declan







>The Netly News (

>November 20, 1997


>Copyrights and Wrongs

>By Declan McCullagh (


> If you think nothing of trading copyrighted software with

>your friends, think again. A new law passed by Congress

>will make even casual copyright breach a crime punishable

>by a fine of up to $250,000 and five years in a federal



> While you're cooling your heels in Club Fed, you'll

>have plenty of time to consider your misdeeds -- which in

>this case could have been making just three copies of Adobe

>Photoshop (cost: $389). The legislation covers anyone who

>copies compact discs, videocasettes or computer software

>worth at least $1,000. The No Electronic Theft Act, which

>President Clinton is expected to sign later this month,

>will be the first law in the history of the U.S. to

>imprison copiers looking to save (not make) a few bucks.


> The President's signature will come not a nanosecond

>too soon for the software and recording industry lobbyists

>who have demanded this legislation for years. "The function

>of the criminal copyright law is to deter people from

>commercial-scale piracy, just as it is to penalize those

>who prosecutors take to court," says Mark Traphagen, vice

>president of the Software Publishers Association, the

>software industry's largest trade organization.