El Tux wrote: [... Dowling v. United States, 473 U.S. 207 (1985) ...]
Oh dear El Tux, that (1985) was long before December 16, 1997, when President Clinton signed HR 2265 -- the No Electronic Theft Act -- into law. FYI: http://commdocs.house.gov/committees/judiciary/hju48724.000/hju48724_0.HTM "The case of United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994), has drawn attention to current law's shortcomings. David LaMacchia, a student at the Massachusetts Institute of Technology described by the court as a ''computer hacker,'' id. at 536, created and operated electronic bulletin boards on the Internet and encouraged users to upload and download copies of popular copyrighted commercial software. The illegal copying that took place on the bulletin boards resulted in alleged losses to the copyright owners of over one million dollars. Because LaMacchia lacked a commercial motive, however, the government charged him with wire fraud rather than criminal copyright infringement. Id. at 541–42. The court dismissed the indictment, holding that copyright infringement can only be prosecuted under the Copyright Act. Id. at 545 (relying on Dowling v. United States, 473 U.S. 207 (1985)). LaMacchia demonstrates that the lack of criminal penalties for willful, noncommercial infringement has become a significant loophole in the digital environment. The court itself decried this loophole, expressing frustration with the confines of section 506(a): [O]ne might at best describe [the defendant's] actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer. . . . But, it is the legislature, not the Court which is to define a crime, and ordain its punishment. Id. at 545 (quotations omitted). H.R. 2265 responds to the court's call for a legislative solution to its dilemma. The bill would close the loophole in current law by making two main changes. First, it clarifies that the ''private financial gain'' element of criminal infringement includes barter—that is, situations where the illegal copies are traded for items of value such as other copyrighted works, not only where they are sold for money. Second, it redefines criminal infringement to include willful infringement by reproduction or distribution, including by electronic means, that lacks a commercial motive but has a substantial commercial effect. regards, alexander. -- "Notwithstanding Jacobsen's confused discussion of unilateral contracts, bilateral contracts, implied licenses, "licenses to the world" and "bare" licenses in his Appellant's Brief, the issue at hand is fairly simple." -- Brief of Appellees (CAFC 2008-1001). _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
