Declan MCullagh*

Should grade schoolers who photocopy a textbook chapter or copy Microsoft Word be considered criminals? David LaMacchia's pirate warez site once hummed quietly along on a DEC station 5000 just down the hall from the study lounge on the top floor of MIT's Stratton Student Center. LaMacchia claims its original purpose was to let visiting netizens exchange software. But soon-either inevitably or intentionally, depending on whom you believe-more and more copyrighted programs began to appear.

This was enough to prompt the federal government to charge the MIT undergraduate in April 1994 with the crime of wire fraud. The indictment argued that his FTP-like site permitted "on an international scale, the illegal copying and distribution of copyrighted software, without payment of software licensing fees." Yet a federal judge dismissed the case that December, ruling that while LaMacchia was wrong-and could be sued in civil court-the aspiring computer scientist was not guilty as charged. Judge Richard Stearns said,"It is not clear that making criminals of a large number of consumersof computer software is a result that even the software industry would consider desirable." This case recognized the so-called "LaMacchia Exemption," under which non-profit copyright infringing is not a crime, though it is a civil offense.

Earlier this summer, a group of software companies,including Microsoft and Adobe, requested new laws to eliminate what they termed the "LaMacchia decision" problem. In other words, giving that copy of Quake to your son is not-yet-a federal felony.

The "No Electronic Theft Act," H.R. 2265, introduced by Rep. Bob Goodlatte on July 25, would eliminate the LaMacchia Exemption. If you give pirated software to a friend (exchanging "anything of value" including "other copyright works"), beware. For the first offense, assuming the software is worth at least $5,000, you get three years in the Federal pen. If you make more than ten total pirated copies, you get six years.

Under H. R. 2180, introduced on July 17 by Rep. Howard Cobel and Rep. Henry Hyde, Internet services generally would not be liable for their customers' copyright infringements. Called the "On-Line Copyright Liability Limitation Act," this bill is what Internet service providers have been demanding for years. Watch major copyright owners like Microsoft frown at this one.

H. R. 2281 is arguably the most controversial of the copyright bills introduced so far, this legislation that was introduced yesterday would enact the World Intellectual Property Organization copyright treaty the U.S. signed last December. Problem is, it may go far beyond what the treaty requires. The bill bans "technology" (including both hardware and software) that has few uses other than "circumventing a technological protection measure."

This could impact encryption. "Circumvention" is defined as "to descramble a scrambled work, to decrypt an encrypted work." (What does this mean for cryptanalysts?) It also restricts removing "copyright management information" that includes titles, author's name, and copyright notice. Violators would be subject to civil penalties or criminal prosecution. If you "circumvent" protection or remove copyright info "for purposes of private financial gain," you'll face up to a $1,000,000 fine and 10 years in Federal prison.

This is serious stuff. And it raises some interesting questions: what if I include a Reuters article in a newsletter I sell, and delete the copyright notice? Am I a Federal felon? Do I have a million dollars?

"They have criminalized conduct that is legal under the current copyright act," says Adam Eisgrau of the American Library Association. "They have created a new crime that is completely divorced from copyright infringement." Eisgrau says this bill isn't required by the WIPO treaty, which only mandates that countries punish actions that infringe, not devices that do.

This legislation has hefty backing: Rep. Henry Hyde (full committee chair), Rep. Howard Cobel (subcommittee chair), and Rep. Barney Frank (ranking Democrat on the subcommittee). Sen. Patrick Leahy, who likely will endorse this approach, said yesterday that he was studying similar legislation. The Software Publisher's Association also supports this bill.

"Do we really want to criminalize the kind of dissemination of information when a teacher makes a photocopy of a magazine article for his or her students?" asks Harvey Silvergate, a Boston attorney who represented LaMacchia and is the co-author of a forthcoming book about freedom on college campuses. "Do we really want to criminalize someone who makes a single copy or two of a program for a friend? After all, if the friend is impressed by the program, he might buy the program just to have the instruction book, or he may buy the upgrade." "To over-criminalize infringements by penalizing not-for-profit copying is to turn too much of everyday life into crime, and to turn too many decent citizens into criminals. It's awful social policy, in addition to being awful economic policy," Silvergate says.

* Declan McCullagh writes the "Afterword" column for The Netly News. He may be reached at declan@well.com. Portions of this article originally appeared in Time Inc.'s The Netly News, at http://netlynews.com/. Copyright (c) 1997 by Time Inc./The Netly News Network.Credit to Netly.