[IWAR] [USA] Strictest copyright regulations ever

From: Mark Hedges (hedgesat_private)
Date: Thu Jan 08 1998 - 14:45:51 PST

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    It looks like this law would even make taping a few favorite songs from
    your CD collection and giving them to a friend potentially a serious
    Mark Hedges
    ---------- Forwarded message ----------
    Date: Thu, 8 Jan 1998 17:26:30 -0500
    From: Declan McCullagh <declanat_private>
    To: politechat_private
    Subject: FC: How long you'll be in jail for copyright violations
    The United States Sentencing Commission has released its proposed
    sentencing guidelines for criminal copyright violations. A new law, backed
    by the software, music, and motion picture industries, makes it a crime
    (for the first time in the history of the U.S.) to infringe copyright --
    even if you're not profiting from it. Giving your dad a copy of your word
    processing and page layout programs could put you in the slammer.
    Details on the law are at the Netly News site:
    Comments on the commission's draft guidelines are due March 12, 1998.
    Legislative Amendments
    Electronic Copyright Infringement
    9. Issue for Comment
        The No Electronic Theft Act, Public Law 105-147, was recently
    enacted to provide a statutory basis to prosecute and punish persons
    who, without authorization and without realizing financial gain or
    commercial advantage, electronically access copyrighted materials or
    encourage others to do so. The Act includes a directive to the
    Commission to (A) ensure that the applicable guideline range for a
    crime committed 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 (B) 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
        Each of the statutes mentioned in the congressional directive
    currently are referenced to Sec. 2B5.3 (Criminal Infringement of
    Copyright or Trademark). That guideline provides for incrementally
    greater punishment when the retail value of the infringing items
    exceeded $2,000. However, when copyrighted materials are infringed upon
    by electronic means, there is no ``infringing item'', as would be the
    case with counterfeited goods. Therefore, the Commission must determine
    how to value the infringed upon items in order to implement the
    congressional directive to take into account the retail value and
    quantity of the items with respect to which the offense was
    committed. The Commission invites comment on how Sec. 2B5.3 (Criminal
    Infringement of Copyright or Trademark) should be amended to best
    effectuate the congressional directives.
        An approach suggested by the Department of Justice is set forth
    below. The Commission invites comment on this and alternative
        Department of Justice Proposed Amendments to Sec. 2B5.3:
        The text of Sec. 2B5.3 is amended to read as follows: ``(a) Base
    offense level: [6]
        (b) Specific Offense Characteristic
        (1) If the loss to the copyright or trademark exceeded $2,000,
    increase by the corresponding number of levels from the table in
    Sec. 2F1.1 (Fraud and Deceit).''.
        The Commentary to Sec. 2B5.3 captioned ``Application Note'' is
    amended in Note 1 by striking:
        `` `Infringing items' means the items that violate the copyright or
    trademark laws (not the legitimate items that are infringed upon).'',
    and inserting:
        ``A court may calculate the `loss to the copyright or trademark
    owner' in any reasonable manner. In determining `loss to the copyright
    or trademark owner,' the court may consider lost profits, the value of
    the infringed upon items, the value of the infringing items, the injury
    to the copyright or trademark owner's reputation, and other associated
        The Commentary to Sec. 2B5.3 captioned ``Application Note'' is
    amended by striking ``Note'' and inserting ``Notes''; and by adding at
    the end the following new note:
        ``2. In some cases, the calculable loss to the victim understates
    the true harm caused by the offense. For example, a defendant may post
    copyrighted material to an electronic bulletin board or similar online
    facility, making it easy for others to illegally obtain and further
    distribute the material. In such an instance, it may not be possible to
    determine or even estimate how many copies were downloaded, or how much
    damage the defendant's conduct ultimately caused. In such cases, an
    upward departure may be warranted. See Chapter Five, Part K
        The Commentary to Sec. 2B5.3 captioned ``Background'' is amended in
    the first paragraph by striking ``value of the infringing items'' and
    inserting ``loss to the copyright or trademark owner''; and by striking
    ``loss or''.
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