Clinton signs draconian antipiracy law, from the Netly News

************

http://cgi.pathfinder.com/netly/opinion/0,1042,1641,00.html

The Netly News Network (http://netlynews.com/)
December 17, 1997

Penance for Pirates
by Declan McCullagh (declan@well.com)

        When it comes to protecting his company's computer software,
   nobody compares with Bill Gates. Not only is the nation's richest man
   thumbing his nose at government antitrust lawyers, but he's also
   toasting his latest victory: a draconian antipiracy bill that
   President Clinton signed yesterday.

        Piloted through Congress by the deep pockets of the software,
   motion picture and recording industries, the law punishes unapproved
   "reproduction or distribution" of books, magazines, software, music or
   videos. The painful penalties must bring a smile to the face of
   software executives: fines of up to $250,000 and five years in federal
   prison.

        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 Microsoft Office (cost: $360 each).
   If it's any consolation, you'll have plenty of company. Joining you
   will be anyone who "willfully" infringes copyrights worth at least
   $1,000 within a six-month period, with stiffer penalties if the total
   jumps to $2,500.

        Ouch. The cost of prosecuting millions of malfeasants has led
   critics to wonder, sensibly enough, if the FBI's time could be better
   spent chasing violent criminals. After all, software companies can
   (and do) sue copyright infringers already. "This is a dreadful piece
   of legislation," says David Post, a law professor at Temple University
   who teaches copyright law. "Congress is doing exactly what they
   shouldn't be doing: reacting in a panic and saying there's so much
   copyright infringement we need to throw people in jail."

[...]

On Wed, 17 Dec 1997, Declan McCullagh wrote:

>         Piloted through Congress by the deep pockets of the software,
>    motion picture and recording industries, the law punishes unapproved
>    "reproduction or distribution" of books, magazines, software, music or
>    videos. The painful penalties must bring a smile to the face of
>    software executives: fines of up to $250,000 and five years in federal
>    prison.

Let's see, you record a Bevis and Butthead marathon on MTV one night
because you aren't home and watch it, then let your friend borrow it and
you're in jail.

You have a CD player at home and use a walkwan when walking around, so you
tape your CD's so you can listen to them. Wham! Instant jail time.

So that pretty much puts 75% of those who own a walkman and a stereo
system in jail.

Kids copying articles out of magazines (or industry newsletters) in
libraries or university libraries wind up in jail.  That's about 99% of
anyone going to college (the 1% would be the ones that go for frats and
kegs only and can't read.)

Where does Fair Use fall into this?  Do you have the actual wording of
this law?  So if some dork publisher decides that you can't download their
shareware/freeware after the fact because he doesn't like you, he can say
it wasn't approved?



=====================================Kaos=Keraunos=Kybernetos==============
.+.^.+.|  Ray Arachelian    |Prying open my 3rd eye.  So good to see |./|\.
..\|/..|sunder@sundernet.com|you once again. I thought you were      |/\|/\
<--*-->| ------------------ |hiding, and you thought that I had run  |\/|\/
../|\..| "A toast to Odin,  |away chasing the tail of dogma. I opened|.\|/.
.+.v.+.|God of screwdrivers"|my eye and there we were....            |.....
======================= http://www.sundernet.com ==========================

At 02:42 PM 12/17/97 -0500, Declan McCullagh wrote:
>At 12:37 -0500 12/17/97, Ray Arachelian wrote:
>>You have a CD player at home and use a walkwan when walking around, so you
>>tape your CD's so you can listen to them. Wham! Instant jail time.
>
>Yes, if you copy $1,000 worth of CDs within six months.
>
At rougly 15.00/CD, that is one CD every three days, more or less..not
utterly inconveivable, but a little difficult.

On the other hand, it's one or two pieces of software.

At 3:07 PM -0700 12/17/97, Brian the Obscure wrote:
>At 11:51 AM 12/17/97 -0800, Lizard wrote:
>>
>>At 02:42 PM 12/17/97 -0500, Declan McCullagh wrote:
>>>At 12:37 -0500 12/17/97, Ray Arachelian wrote:
>>>>You have a CD player at home and use a walkwan when walking around, so you
>>>>tape your CD's so you can listen to them. Wham! Instant jail time.
>>>
>>>Yes, if you copy $1,000 worth of CDs within six months.
>>>
>>At rougly 15.00/CD, that is one CD every three days, more or less..not
>>utterly inconveivable, but a little difficult.
>
>Try this scenario:  I have 150+ audio cd's, many of which are rare, import,
>out of print, or even all of the above.  Since a fire could leave me
>missing many pieces of irreplaceable music, I had come up with a plan.  Get
>a cd-r burner, make backup copies of my audio discs, and store them in a
>safe deposit box.

All of this about jail time for copying CDs is nonsense, even under the new
law.

Some years back, circa 1989-91 or so, Congress passed a new tax on blank
tape and other such blank media...we've all been paying a little bit for
blank media as a result of this law. (The name of the law is no longer on
the tip of my tongue, but it was something about intellectual property
rights, or somesuch--the name may be the "Home Recording Act," it now
occurs to me.)

One of the key provisions was that home taping, or archival taping, or
taping for any _noncommercial_ use was now fully legal, with not even the
hint of illegality.

A friend of mine has over 4500 CDs he has borrowed from libraries, friends,
etc. and transferred to DAT tapes. (Until recently, DATs were cheaper per
hour of recording than CD-Rs....this has recently changed, and CD-Rs are
now as cheap or cheaper.)

Myself, I have about 200 CDs on DAT. All strictly legal under this Act.

It is possible that the new law just signed by Clinton will conflict with
the older explicit permission. I presume they'll return our blank tape
taxes, then, right? And I presume they'll have ways to know which tapes
were made when this taping was fully legal (explicitly), and which were
made after?

No on both of these accounts.

However, the new law is pernicious.

There is no way to establish the "value" of goods, except by sales price,
and this is problematic.

(I could declare this posting to have a "value" of $1000, and in fact offer
to sell it to non-Cyphepunks list members for $1000. It would be fully
legal and feasible for more to do this. Then, if someone made a "copy" of
it, as they might make a copy of Microsoft Office, they've broken the new
law. Of course, the Copyright Cops won't go after Joe Blow for "pirating"
my little article...they'll only go after their corporate donors.)

--Tim May


The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

On Thu, 18 Dec 1997, Tim May wrote:
> >Try this scenario:  I have 150+ audio cd's, many of which are rare, import,
> >out of print, or even all of the above.  Since a fire could leave me
> >missing many pieces of irreplaceable music, I had come up with a plan.  Get
> >a cd-r burner, make backup copies of my audio discs, and store them in a
> >safe deposit box.
> 
> All of this about jail time for copying CDs is nonsense, even under the new
> law.

As a practical matter, you are correct. Just like it's unlikely a federal
prosecutor is going to try to imprison you for saying "fuck" online, it's
unlikely one will prosecute you for copying CDs at home.

However, it does not mean that the NET bill is good law.

> One of the key provisions was that home taping, or archival taping, or
> taping for any _noncommercial_ use was now fully legal, with not even the
> hint of illegality.

Instead of relying on your (admittedly) hazy recollections of the act, you
might want to look at it again. If you have a cite, I'll plug it into
Lexis.

It's clear from the plain text of the statute that the NET Act applies to
nonprofit infringing ("reproduction or distribution") of copyrighted
material. Archival purposes are perhaps not infringing. But dubbing 4,500
CDs from copies borrowed from libraries, as your friend did, probably is.

-Declan

At 02:46 PM 12/18/97 -0700, Tim May wrote:
>"§ 1008. Prohibition on certain infringement actions
>
>"No action may be brought under this title alleging infringement 
>...based on the
>noncommercial use by a consumer of such a device or medium for making
>digital musical recordings or analog musical recordings. "
...
>The HRA places no limits on the numbers of such tapings. All that matters
>is that he is not selling or renting them out.

The N.E.T. Act redefines commercial gain to include if you exchange copies
of recordings with people.  Presumably if you and I were to trade CD's we
might be  engaged in commercial gain.  If we trade copies we definitely
appear to be financially gaining under the act's new definition.




  -- Robert Costner                  Phone: (770) 512-8746
     Electronic Frontiers Georgia    mailto:pooh@efga.org  
     http://www.efga.org/            run PGP 5.0 for my public key

At 3:18 PM -0700 12/18/97, Declan McCullagh wrote:

>> One of the key provisions was that home taping, or archival taping, or
>> taping for any _noncommercial_ use was now fully legal, with not even the
>> hint of illegality.
>
>Instead of relying on your (admittedly) hazy recollections of the act, you
>might want to look at it again. If you have a cite, I'll plug it into
>Lexis.
>

As I said in my article, I recalled the name as being the "Home Recording
Act." A search shows several hundred hits on this, many dealing with the
implications for home taping. The implications of the HRA for home taping
of CDs and other music were discussed extensively in Cyberia and other fora.

The text at one of the URLs, http://www.law.cornell.edu/uscode/17/ch10.html

shows this:

"§ 1008. Prohibition on certain infringement actions

"No action may be brought under this title alleging infringement of
copyright based on the manufacture, importation, or distribution of a
digital
audio recording device, a digital audio recording medium, an analog
recording device, or an analog recording medium, or based on the
noncommercial use by a consumer of such a device or medium for making
digital musical recordings or analog musical recordings. "


>It's clear from the plain text of the statute that the NET Act applies to
>nonprofit infringing ("reproduction or distribution") of copyrighted
>material. Archival purposes are perhaps not infringing. But dubbing 4,500
>CDs from copies borrowed from libraries, as your friend did, probably is.

Nope. It ain't. At least not of the HRA.

The HRA places no limits on the numbers of such tapings. All that matters
is that he is not selling or renting them out.

The HRA did not try to solve the "lost business" side of the equation, as
this is a hopeless fever swamp to wander into, as the alternate history of
whether my friend would have _bought_ the 4500 CDs is unknowable. Though,
knowing him, "Hell no." The blank tape tax was designed to be a minor piece
of compensation to the recording industry. The tape tax is paid by the tape
manufacturer or importer, not the customer, though of course the tax is
ultimately paid by the consumer.

(The extent to which the new law collides with the HRA is an issue, which I
addressed in my points about how can the CopyCops know when the copies were
made, etc.)


--Tim May


The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

At 02:30 PM 12/18/1997 -0700, Tim May wrote:
>What I meant by this was that the Copyright Cops will only go after those
>who illegally copy the items made by big corporations and other friends of
>the enforcers. Netscape and Oracle are Friends of Bill, so they'll get
>quick attention. Joe Blow will be put on hold.

Of course, most of your CDs are made by Disney-Sony-Megacorp, who are
also Friends of Bill.  On the other hand, one extra backup copy of
FooBar Development Tool will get you.

>"Anarchist's home in mountains raided...thousands of dollars worth of
>illegally copied articles, files, and CDs found...prosecutors say "three
>strikes" law could put anarchist separatist survalist spy May away for life
>without the possibility of parole."
>
>And now I need to go mount  that Leupold scope on my new Remington 700 .308
>sniper rifle....just the thing to reach out and touch someone.

I hope you didn't make a backup Xerox(tm) of the manual - 
it's part of that $1500 munitions system, and obviously most of the value
is in the intellectual property, not the boring metal....
				Thanks! 
					Bill
Bill Stewart, bill.stewart@pobox.com
PGP Fingerprint D454 E202 CBC8 40BF  3C85 B884 0ABE 4639

At 11:18 AM -0700 12/19/97, stewarts@ix.netcom.com wrote:
>At 01:47 PM 12/18/1997 -0700, Tim May wrote:

>>One of the key provisions was that home taping, or archival taping, or
>>taping for any _noncommercial_ use was now fully legal, with not even the
>>hint of illegality.
>
>But new laws generally override old laws.  After all, the old Copyright law
>excepted "fair use" copies from its coverage.  The mere fact that they're
>still taxing blank tape doesn't mean they can't re-criminalize copying.

And the blank tape I stocked up on, and paid taxes on?

And of course enforceability with these kinds of laws is unarguably almost
nonexistent. As someone said, this is a "cherry on the sundae" sort of law,
designed to pile on extra charges.

I would guess that 80% or more of all households will be in technical
violation of this law within a matter of months of its offical start.
Anyone with a home computer will likely make more than the number of
allowed backups, or will commingle several titles on the same ZIP drive, or
will (horrors!) share the use of a program between husband, wife, and
children. Or even (send in the SWAT ninjas) share with the neighbors.

And it's unclear (to me, at least) what this does to home taping of t.v.
shows and movies, which seemed pretty well-solved by the Disney-Sony
"Betamax" case.

The law will be used against folks like Jim Bell to pile on charges.

Lock and load,

--Tim May


The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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In <v03102805b0c076d8a7ae@[207.167.93.63]>, on 12/19/97 
   at 02:15 PM, Tim May <tcmay@got.net> said:

>The law will be used against folks like Jim Bell to pile on charges.

Yep, in effect it has made *everyone* a felon subject to a lenghty prison
sentence at the whim of the Lea's.

It also make it much easier for the Lea's to manufacture "evidence"
against anyone. After they confiscate your compute equipment they just
make a few floppies and volia!! Instant felon!! At least under old laws
they had to prove that you were trying to turn a profit off of copies
which is a much harder thing to do.

I for one would not wish to be in the position to convince a jury that *I*
did not create those floppies.

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://users.invweb.net/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
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At 12:08 PM 12/17/97 -0800, Declan McCullagh wrote:
>Note that the law is medium-independent. That is, it just talks about
>"copyrighted works." So if you copy a few videocassettes, a few CDs, a few
>magazine articles, the Feds can still get you if the total value is over
>$1,000. 
>
>And yes, of course, it's just one or two pieces of software. In my article
>I said three copies of Microsoft Office ($360 at local computer stores).

The law covers not only copies, but derivative works apparently.
Derivative works can violate the exclusive rights of the copyright holder.
If for instance I install software on a regular basis, but don't like the
slow MS installation routine, I can reverse engineer the process and
provide a derivative work that installs better.  

I have infact done this before and used the process to personally install
software on over 1,500 machines.  My thought has always been if the owner
of the machine had a license for the original software, my derivative work
that is preconfigured would be no harm in installing.  I've never bothered
to break the shrinkwrap each time I install software.  Under this law such
a thing would be considered a criminal act.  

A policeman observing me doing this copying of derivative works (whether or
not I had a license to make such a derivative work) could arrest me on sight.


  -- Robert Costner                  Phone: (770) 512-8746
     Electronic Frontiers Georgia    mailto:pooh@efga.org  
     http://www.efga.org/            run PGP 5.0 for my public key

Note that the law is medium-independent. That is, it just talks about
"copyrighted works." So if you copy a few videocassettes, a few CDs, a few
magazine articles, the Feds can still get you if the total value is over
$1,000. 

And yes, of course, it's just one or two pieces of software. In my article
I said three copies of Microsoft Office ($360 at local computer stores).

-Declan


On Wed, 17 Dec 1997, Lizard wrote:

> At 02:42 PM 12/17/97 -0500, Declan McCullagh wrote:
> >At 12:37 -0500 12/17/97, Ray Arachelian wrote:
> >>You have a CD player at home and use a walkwan when walking around, so you
> >>tape your CD's so you can listen to them. Wham! Instant jail time.
> >
> >Yes, if you copy $1,000 worth of CDs within six months.
> >
> At rougly 15.00/CD, that is one CD every three days, more or less..not
> utterly inconveivable, but a little difficult.
> 
> On the other hand, it's one or two pieces of software. 
> 
> 
>

At 02:42 PM 12/17/97 -0500, Declan McCullagh wrote:
>since the infringment has to be "willful." That is, you have to
>KNOW that what you're doing is INDEED an infringment in order to be
>convicted.

Section 506(a) of title 17, United States Code, is amended to read as follows:
Any person who infringes a copyright willfully ....

I know this has been discussed before, but I am unclear as to what are the
differences between "willfully" and other concepts, such as "knowingly."  I
wish one of the lawyer types on here could clarify this some more.  If
willful means that you know what you are doing, then it might narrow the
law some.  You would have to know the work was copyrighted, and you would
have to know that the copying is not allowed by law.

I'm confused by the law as it seems to make some actions criminal that I
cannot conceive were meant to be criminal.  Since I know that by surfing
the web and being on mail lists, and using usenet, I will exchange copies
of copyrighted works I am confused by this new law's affirmation that I am
participating in "financial gain" by reading web pages and the like.  Since
I am confused, perhaps my actions are not willful?

Just what is the meaning of "Willful" in this context?


  -- Robert Costner                  Phone: (770) 512-8746
     Electronic Frontiers Georgia    mailto:pooh@efga.org  
     http://www.efga.org/            run PGP 5.0 for my public key

"Criminal Intent" used to be one aspect of a crime that was required
to be proved before a conviction could be made.

Today Criminal Intent comes into play only occasionally at sentencing,
otherwise the Judiciary just ignores it.

So don't kid yourself,  the words "Willful  Intent" are just there to
preserve a veneer of reasonableness. They will as a practical manner be
ignored.

Hasn't the governments motive for this new law been discussed yet?

Universal  PC (Probable Cause) to search the computers of dissidents and
political enemies.

    How simple to upload a CD ROM of some $1000.00 piece of "Pirated"
Software and secure a conviction. Roll the CMOS Date back a while, load
the program. Then change the CMOS date to the current correct one. Now
throw in a PGP encrypted Chapter of the Gulag Archipelago (appropriate)
and then claim all related doc's are encrypted (probably terrorist plans
and the accused refuse to divulge the password (they claim not to know
it or where the Software came from.. "ha ha we know better").

Ahh...a "New High Tech Weapon in the Government's fight against  their
"enemies"...the people.


Wm.




Robert A. Costner wrote:

> At 02:42 PM 12/17/97 -0500, Declan McCullagh wrote:
> >since the infringment has to be "willful." That is, you have to
> >KNOW that what you're doing is INDEED an infringment in order to be
> >convicted.
>
> Section 506(a) of title 17, United States Code, is amended to read as
> follows:
> Any person who infringes a copyright willfully ....
>
> I know this has been discussed before, but I am unclear as to what are
> the
> differences between "willfully" and other concepts, such as
> "knowingly."  I
> wish one of the lawyer types on here could clarify this some more.  If
>
> willful means that you know what you are doing, then it might narrow
> the
> law some.  You would have to know the work was copyrighted, and you
> would
> have to know that the copying is not allowed by law.
>
> I'm confused by the law as it seems to make some actions criminal that
> I
> cannot conceive were meant to be criminal.  Since I know that by
> surfing
> the web and being on mail lists, and using usenet, I will exchange
> copies
> of copyrighted works I am confused by this new law's affirmation that
> I am
> participating in "financial gain" by reading web pages and the like.
> Since
> I am confused, perhaps my actions are not willful?
>
> Just what is the meaning of "Willful" in this context?
>
>   -- Robert Costner                  Phone: (770) 512-8746
>      Electronic Frontiers Georgia    mailto:pooh@efga.org
>      http://www.efga.org/            run PGP 5.0 for my public key

At 12:37 PM 12/17/97 -0500, Ray Arachelian wrote:
>Where does Fair Use fall into this?  Do you have the actual wording of
>this law?

Here is a copy of the law.

No Electronic Theft (NET) Act (Enrolled Bill (Sent to President)) 
H.R.2265 
One Hundred Fifth Congress
of the
United States of America
AT THE FIRST SESSION

Begun and held at the City of Washington on Tuesday, the seventh day of
January, one thousand nine hundred and ninety-seven 

An Act 

To amend the provisions of titles 17 and 18, United States Code, to provide
greater copyright protection by amending criminal copyright infringement
provisions, and for other purposes. 

     Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,

SECTION 1. SHORT TITLE.

     This Act may be cited as the `No Electronic Theft (NET) Act'.

SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS.

     (a) DEFINITION OF FINANCIAL GAIN- Section 101 of title 17, United
States Code, is amended by inserting after the undesignated paragraph
relating to the term `display', the following new paragraph:

          `The term `financial gain' includes receipt, or expectation of
receipt, of anything of value, including the receipt of other copyrighted
works.'.

     (b) CRIMINAL OFFENSES- Section 506(a) of title 17, United States Code,
is amended to read as follows:

     `(a) CRIMINAL INFRINGEMENT- Any person who infringes a copyright
willfully either--

          `(1) for purposes of commercial advantage or private financial
gain, or

          `(2) by the reproduction or distribution, including by electronic
means, during any 180-day period, of 1 or more copies or phonorecords of 1
or more copyrighted works, which have a total retail value of more than
$1,000,

     shall be punished as provided under section 2319 of title 18, United
States Code. For purposes of this subsection, evidence
     of reproduction or distribution of a copyrighted work, by itself,
shall not be sufficient to establish willful infringement.'.

     (c) LIMITATION ON CRIMINAL PROCEEDINGS- Section 507(a) of title 17,
United States Code, is amended by striking `three' and inserting `5'.

     (d) CRIMINAL INFRINGEMENT OF A COPYRIGHT- Section 2319 of title 18,
United States Code, is amended--

          (1) in subsection (a), by striking `subsection (b)' and inserting
`subsections (b) and (c)';

          (2) in subsection (b)--

               (A) in the matter preceding paragraph (1), by striking
`subsection (a) of this section' and inserting `section 506(a)(1) of title
17'; and

               (B) in paragraph (1)--

                    (i) by inserting `including by electronic means,' after
`if the offense consists of the reproduction or distribution,'; and

                    (ii) by striking `with a retail value of more than
$2,500' and inserting `which have a total retail value of more than
$2,500'; and

          (3) by redesignating subsection (c) as subsection (e) and
inserting after subsection (b) the following:

     `(c) Any person who commits an offense under section 506(a)(2) of
title 17, United States Code--

          `(1) shall be imprisoned not more than 3 years, or fined in the
amount set forth in this title, or both, if the offense consists of the
reproduction or distribution of 10 or more copies or phonorecords of 1 or
more copyrighted works, which have a total retail value of $2,500 or more;

          `(2) shall be imprisoned not more than 6 years, or fined in the
amount set forth in this title, or both, if the offense is a second or
subsequent offense under paragraph (1); and

          `(3) shall be imprisoned not more than 1 year, or fined in the
amount set forth in this title, or both, if the offense consists of the
reproduction or distribution of 1 or more copies or phonorecords of 1 or
more copyrighted works, which have a total retail value of more than $1,000.

     `(d)(1) During preparation of the presentence report pursuant to Rule
32(c) of the Federal Rules of Criminal Procedure, victims of the offense
shall be permitted to submit, and the probation officer shall receive, a
victim impact statement that identifies the victim of the offense and the
extent and scope of the injury and loss suffered by the victim, including the
     estimated economic impact of the offense on that victim.

     `(2) Persons permitted to submit victim impact statements shall include--

          `(A) producers and sellers of legitimate works affected by
conduct involved in the offense;

          `(B) holders of intellectual property rights in such works; and

          `(C) the legal representatives of such producers, sellers, and
holders.'.

     (e) UNAUTHORIZED FIXATION AND TRAFFICKING OF LIVE MUSICAL
PERFORMANCES- Section 2319A of title 18, United States Code, is amended--

          (1) by redesignating subsections (d) and (e) as subsections (e)
and (f), respectively; and

          (2) by inserting after subsection (c) the following:

     `(d) VICTIM IMPACT STATEMENT- (1) During preparation of the
presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal
Procedure, victims of the offense shall be permitted to submit, and the
probation officer shall receive, a victim impact statement that identifies
the victim of the offense and the extent and scope of the injury and loss
suffered by the victim, including the estimated economic impact of the
offense on that victim.

     `(2) Persons permitted to submit victim impact statements shall include--

          `(A) producers and sellers of legitimate works affected by
conduct involved in the offense;

          `(B) holders of intellectual property rights in such works; and

          `(C) the legal representatives of such producers, sellers, and
holders.'.

     (f) TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES- Section 2320 of
title 18, United States Code, is amended--

          (1) by redesignating subsections (d) and (e) as subsections (e)
and (f), respectively; and

          (2) by inserting after subsection (c) the following:

     `(d)(1) During preparation of the presentence report pursuant to Rule
32(c) of the Federal Rules of Criminal Procedure, victims of the offense
shall be permitted to submit, and the probation officer shall receive, a
victim impact statement that identifies the victim of the offense and the
extent and scope of the injury and loss suffered by the victim, including
the estimated economic impact of the offense on that victim.

     `(2) Persons permitted to submit victim impact statements shall include--

          `(A) producers and sellers of legitimate goods or services
affected by conduct involved in the offense;

          `(B) holders of intellectual property rights in such goods or
services; and

          `(C) the legal representatives of such producers, sellers, and
holders.'.

     (g) DIRECTIVE TO SENTENCING COMMISSION- (1) Under the authority of the
Sentencing Reform Act of 1984 (Public Law 98-473; 98 Stat. 1987) and
section 21 of the Sentencing Act of 1987 (Public Law 100-182; 101 Stat.
1271; 18 U.S.C. 994 note) (including the authority to amend the sentencing
guidelines and policy statements), the United States Sentencing Commission
shall ensure that the applicable guideline range for a defendant convicted
of a crime against intellectual property (including offenses set forth at
section 506(a) of title 17, United States Code, and sections 2319, 2319A,
and 2320 of title 18, United States Code) is sufficiently stringent to
deter such a crime and to adequately reflect the additional considerations
set forth in paragraph (2) of this subsection.

     (2) In implementing paragraph (1), the Sentencing Commission shall
ensure that the guidelines provide for consideration of the retail value
and quantity of the items with respect to which the crime against
intellectual property was committed.

SEC. 3. INFRINGEMENT BY UNITED STATES.

     Section 1498(b) of title 28, United States Code, is amended by
striking `remedy of the owner of such copyright shall be by action' and
inserting `action which may be brought for such infringement shall be an
action by the copyright owner'.

At 12:37 -0500 12/17/97, Ray Arachelian wrote:
>You have a CD player at home and use a walkwan when walking around, so you
>tape your CD's so you can listen to them. Wham! Instant jail time.

Yes, if you copy $1,000 worth of CDs within six months.

>Where does Fair Use fall into this?  Do you have the actual wording of
>this law?  So if some dork publisher decides that you can't download their
>shareware/freeware after the fact because he doesn't like you, he can say
>it wasn't approved?

You might want to read the rest of my article. I also link to the text of
the law. I suspect that your "dork publisher" example is not exactly
covered since the infringment has to be "willful." That is, you have to
KNOW that what you're doing is INDEED an infringment in order to be
convicted.

That does not mean it is a good law, of course. A better example might be
knowingly posting a copyrighted article (let's say, worth $1) to Usenet. As
soon as it's distributed around Usenet's thousands of NNTP servers --
Bingo! -- you're a federal felon.

The Scientologists, I predict, will love this law.

-Declan

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

At 03:14 PM 12/17/97 -0500, Robert A. Costner wrote:
>Just what is the meaning of "Willful" in this context?

IANAL, but if I convert my MAK-90 to fire full-auto, and I get caught with
it, I am going to spend some serious time in prison regardless of whether
or not I had a clue that doing so was illegal, or whether I even knew the
weapon had been converted.  Mere posession of such a device is sufficient
to convict me.  I think the antipiracy law will probably be enforced
"cherry on the sundae" style--I doubt cops will do house-to-house searches
looking for illegal copies of things, but if you get busted for something
else, they will probably throw piracy charges in to get you to plea
bargain.
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Jonathan Wienke

PGP Key Fingerprints:
7484 2FB7 7588 ACD1  3A8F 778A 7407 2928
3312 6597 8258 9A9E D9FA  4878 C245 D245 EAA7 0DCC

"If ye love wealth greater than liberty, the tranquility of servitude
greater than the animating contest for freedom, go home from us in peace.
We seek not your counsel, nor your arms. Crouch down and lick the hand that
feeds you. May your chains set lightly upon you; and may posterity forget
that ye were our countrymen."
-- Samuel Adams

"Stupidity is the one arena of of human achievement where most people
fulfill their potential."
-- Jonathan Wienke

Never sign a contract that contains the phrase "first-born child."

RSA export-o-matic:
print pack"C*",split/\D+/,`echo "16iII*o\U@{$/=$z;[(pop,pop,unpack"H*",<>
)]}\EsMsKsN0[lN*1lK[d2%Sa2/d0<X+d*lMLa^*lN%0]dsXx++lMlN/dsM0<J]dsJxp"|dc`

At 11:51 AM 12/17/97 -0800, Lizard wrote:
>
>At 02:42 PM 12/17/97 -0500, Declan McCullagh wrote:
>>At 12:37 -0500 12/17/97, Ray Arachelian wrote:
>>>You have a CD player at home and use a walkwan when walking around, so you
>>>tape your CD's so you can listen to them. Wham! Instant jail time.
>>
>>Yes, if you copy $1,000 worth of CDs within six months.
>>
>At rougly 15.00/CD, that is one CD every three days, more or less..not
>utterly inconveivable, but a little difficult.

Try this scenario:  I have 150+ audio cd's, many of which are rare, import,
out of print, or even all of the above.  Since a fire could leave me
missing many pieces of irreplaceable music, I had come up with a plan.  Get
a cd-r burner, make backup copies of my audio discs, and store them in a
safe deposit box.

With this law, my plan would make me a felon somewhere around the 66th
disc.  With the 'victimized' record company getting to create the impact
statement, it might even be sooner.

--Brian
"But I thought everyone had CD's at the bank!"
Brian Daniels               | Gremlins squashed, bit-buckets emptied,
briandaniels@mindspring.com | webs woven&patched, cables untangled,
                            | users placated (extra fee), demons
                            | invoked&dispelled, hacks while you wait!
		http://www.mindspring.com/~briandaniels

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At 1:47 PM -0700 12/18/97, Tim May wrote:


>(I could declare this posting to have a "value" of $1000, and in fact offer
>to sell it to non-Cyphepunks list members for $1000. It would be fully
>legal and feasible for more to do this. Then, if someone made a "copy" of
>it, as they might make a copy of Microsoft Office, they've broken the new
>law. Of course, the Copyright Cops won't go after Joe Blow for "pirating"
>my little article...they'll only go after their corporate donors.)

What I meant by this was that the Copyright Cops will only go after those
who illegally copy the items made by big corporations and other friends of
the enforcers. Netscape and Oracle are Friends of Bill, so they'll get
quick attention. Joe Blow will be put on hold.

Even though my article is given a value of $1000 by me (who else?), there
will be no interest whatsover in prosecuting someone for illegally copying
my article.

However, let the cops find some Zip drives or CD-Rs marked "Microsoft
Office" in the home office of someone like me when they finally get around
to raiding my home, and they'll look to see if each and every item has full
receipts (which I don't usually even keep anyway). And they'll look for
more than the _one_ allowed backup, or whatever the law finally says is
permissable...

"Al Capone jailed for violation of the Copyright Act...Ness says the
Copyright Act can be used to get criminals untouchable using ordinary laws."

"Anarchist's home in mountains raided...thousands of dollars worth of
illegally copied articles, files, and CDs found...prosecutors say "three
strikes" law could put anarchist separatist survalist spy May away for life
without the possibility of parole."

And now I need to go mount  that Leupold scope on my new Remington 700 .308
sniper rifle....just the thing to reach out and touch someone.


--Tim May

The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

At 01:47 PM 12/18/1997 -0700, Tim May wrote:
>All of this about jail time for copying CDs is nonsense, even under the new
>law.
>
>Some years back, circa 1989-91 or so, Congress passed a new tax on blank
>tape and other such blank media...we've all been paying a little bit for
>blank media as a result of this law. (The name of the law is no longer on
>the tip of my tongue, but it was something about intellectual property
>rights, or somesuch--the name may be the "Home Recording Act," it now
>occurs to me.)
>
>One of the key provisions was that home taping, or archival taping, or
>taping for any _noncommercial_ use was now fully legal, with not even the
>hint of illegality.

But new laws generally override old laws.  After all, the old Copyright law
excepted "fair use" copies from its coverage.  The mere fact that they're
still taxing blank tape doesn't mean they can't re-criminalize copying.
				Thanks! 
					Bill
Bill Stewart, bill.stewart@pobox.com
PGP Fingerprint D454 E202 CBC8 40BF  3C85 B884 0ABE 4639