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How Noncommercial Filesharing Became Criminalized in the US
09-20-2010, 12:23 PM (This post was last modified: 09-24-2010 02:14 PM by altezon.)
Post: #1
Star How Noncommercial Filesharing Became Criminalized in the US
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For about 200 years, criminal copyright infringement in the US required the infringer to be
acting "for purposes of commercial advantage or private financial gain".
This was how the law read in the Copyright Act of 1976:

17 USC §506(a) Criminal Infringement.--Any person who infringes a copyright
willfully and for purposes of commercial advantage or private financial gain

shall be punished as provided in section 2319 of title 18.


...until the law was changed on 26Jan98, when §506(a) was amended to look like this:

17 USC §506(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.


...and the term 'financial gain' became defined as 'receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works' (17 USC §101).


The new law became known as The NET Act (No Electronic Theft) and was the direct result of the federal case of US v. LaMacchia (1994).
LaMacchia was criminally charged but acquitted for allegedly facilitating massive copyright infringement by filesharing,
but the court found that without any commercial motive the existing criminal law didn't apply to him.
So Congress changed the law to close "the LaMacchia Loophole".

http://en.wikipedia.org/wiki/NET_Act
http://scholar.google.com/scholar_case?c...i=scholarr

The law reached it's present form in 3 Jan 2006:

17 USC §506(a) Criminal Infringement.--

(1) In general.--Any person who willfully infringes a copyright
shall be punished as provided under section 2319 of title 18, if
the infringement was committed--

(A) for purposes of commercial advantage or private financial gain;

(B) 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; or

(C ) by the distribution of a work being prepared for
commercial distribution, by making it available on a computer
network accessible to members of the public, if such person knew
or should have known that the work was intended for commercial
distribution.

(2) Evidence.--For purposes of this subsection, evidence of
reproduction or distribution of a copyrighted work, by itself,
shall not be sufficient to establish willful infringement of a
copyright.


(The character '§' is often used to mean 'section'.)

It's important to note that parts (A), (B) and (C ) above are three separate crimes.

Hence, an indictment might read that John Smith willfully infringed a copyright by the
distribution of one or more copyrighted works during a particular six-month period,
where the retail value of said works exceeded $1000. This wording would indicate Smith
was being charged with violation of 17 USC §506(a)(1)(B). To learn the possible penalties
for this offense we check 18 USC §2319(c ):

Any person who commits an offense under section 506(a)(1)(B) of
title 17--

(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.


Or another indictment could read that Smith willfully infringed a copyright by the
distribution of one or more copyrighted works in the expectation of receiving other
valuable copyrighted works in return. Taken with the new definition of "financial gain",
this wording would indicate a violation of 17 USC §506(a)(1)(A). To learn the possible
penalties for this offense we check 18 USC §2319(b):

Any person who commits an offense under section 506(a)(1)(A) of title 17--

(1) shall be imprisoned not more than 5 years, or fined in the
amount set forth in this title, or both, if the offense consists of
the reproduction or distribution, including by electronic means,
during any 180-day period, of at least 10 copies or phonorecords, of
1 or more copyrighted works, which have a total retail value of more
than $2,500;

(2) shall be imprisoned not more than 10 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, in any other case.



For criminal cases, see FBI Busts Filesharers for Violations of the NET Act.
http://suprbay.createmybb3.com/showthrea...52#pid1152

Use my guide for finding laws I've cited at the Government Printing Office (GPO) site, or enter the site's page on the US Code and figure it out yourself.

Other countries have criminal penalties for noncommercial filesharing too, in addition to the civil penalties.
To find the laws for a particular country, search that country's laws for the statutes relating to 'copyright infringement' (or the equivalent term).
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