Monday, October 03, 2005

COPYRIGHT: In 1997, Clinton eliminate profit motive from copyright crime requirement

December 18, 1997
Vol. 5 - No. 246 Media Daily Archive
DIRECT Newsline

Clinton Quietly Signs Controversial New Copyright Bill

President Clinton sided with programmers and prosecutors on Tuesday,
quietly signing into law The No Electronic Theft Act, a controversial
copyright bill that imposes criminal sanctions for infringements not
motivated by profit. However, it was not until Wednesday afternoon
that the White House executive clerk's office noted that the event had
occurred, according to Reuters.

The profit element of the crime of willful infringement is what had
kept David LaMacchia out of jail. LaMacchia was a 20-year-old college
student who put a bunch of copyrighted software -- including Excel 5.0
and WordPerfect 6.0 -- on two publicly accessible MIT servers, thereby
enabling massive free yet illegal downloads. Over a six-week period,
the government estimated that $1 million in software was stolen.
Except: LaMacchia didn't make a dime off of his misdeed.

Intuitively, prosecutors recognized this case as a felony rather than
a civil misdeed, and therefore traded the quasi-tort copyright claim
for the teeth of wire-fraud, which carried with it a maximum sentence
of $1,000 fine and five years imprisonment. But fraud also implies a
profit motive, and the case was dismissed without a trial.

The new law removes the profit requirement for criminal prosecution of
copyright infringement. The remaining elements of the crime are that
the infringement must be willful, and that the stolen copyrighted
materials must have a retail value of at least $1,000.

Under the new law, LaMacchia could have been imprisoned for up to
three years and fined up to $250,000. Instead, he was found innocent.
Had he been found guilty of willfully infringing copyrighted goods
with a retail value of between $1,000 and $2,500 under the new law,
LaMaccia could have been imprisoned for up to one year and fined up to

A group of scientists had lobbied hard against the new law, arguing
that it could potentially criminalize Web-based scientific
publications and that it could limit the fair use doctrine. Case law
has defined fair use over the years as applying to criticism, comment,
news reporting, teaching, scholarship and research.

Comment Related Links
United States Copyright Office

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Cowles/Simba Media Daily 12/18/97
Copyright 1997 Cowles Business Media. All rights reserved.

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