Questions for DoJ IP Attorneys Asked and Answered
Date: November 25, 2003Source: Computer Crime Research Center
These answers are from the lawyers in the U.S. DoJ's Computer Crime and Intellectual Property Section (CCIPS) -- the people who prosecute criminal file-sharing cases. Michael O'Leary, Deputy Chief for Intellectual Property at the DoJ, submitted the answers, but other lawyers in the section worked with him to write them, all under the ground rules laid out in our 'Meet the DoJ's 'Anti-Piracy' Lawyers post last week.
First, thank you doing this interview. Most people here take IP very seriously and want laws and law enforcement that do what the Constitution intended.
Contrary to what many lay-people believe, open source software relies (heavily) on copyright and the legal system that assures those rights. In fact, among Slashdot readers are a large number of people who own copyrights to open source software. My question is what services your organization offers in practice to "real people". Our community creates software whose quality competes with that of multi-billion dollar corporations, so we clearly have a significant interest in having our own rights as authors protected. We all have no doubt that if Jack Valenti finds a website selling pirated versions of his movies that law enforcement will descend upon the infringer with a fury comparable to that wielded against drug smugglers and violent criminals.
Few among us would really object to enforcing the law against such a clear violation, however, I cannot help but wonder if there is equity in the system. I wonder whether an individual author's rights as a copyright owner would be similary protected? For example, if substantial quantities of code that one of us has written ends up in a company's product in a way that clearly violates the terms of an open source licence, how would the infringed copyright holder go about seeking your services?
What policy governs your decision whether or not to act on behalf of a copyright owner when a complaint is raised? What assures that the heavy hand of the law protects an individual's rights with the same fury that it defends those of the RIAA or a major software corporation?
Thanks for your question. The issues you raise are ones that we confront from time to time and we welcome the chance to address them here on Slashdot. In reviewing your question, and many that follow, it appears that some Slashdot readers feel that the Department of Justice only protects the IP rights of big corporations. That simply isn t the case. There is no doubt that large multi-national corporations are often victimized by piracy due in some measure to the popularity and pervasiveness of their products. But at the same time, there are also many others who are victimized, such as small mom and pop operations, and young developers trying to break into a crowded and competitive market. I imagine many Slashdot regulars fall into these categories.
In deciding whether or not to prosecute an intellectual property case, we undertake a thorough examination of a number of factors. These include the nature and seriousness of the offense, the deterrent effect of the prosecution, the potential defendant s culpability, the potential defendant s history with respect to criminal activity, the likelihood of the prosecution leading to additional investigations of others, and the possible sentence or other consequences. Factors such as these, and not the identity of the victim, are the basis for prosecutorial decisions. We have made strong intellectual property rights enforcement a priority and we will continue to do so without regard to the size or market share of the victim(s).
The prosecutions we undertake do in fact benefit real people. If you look at the people and organizations who have been victimized by the defendants we prosecute, you will see that we enforce the law without regard to who the victims may be and we have protected the rights of victim companies of all sizes.
In one recent case, for example, we prosecuted individuals for pirating a significant amount of high-end application software. There were literally hundreds of victim companies, the vast majority of which were not large corporations. One victim company was a small software manufacturer located in the Midwest. They had one or two viable programs that sustained their entire operation of about ten employees, many of whom were family members of the owner. The company had spent many years developing its software, so the owner, of course, was devastated to find that his product had been pirated and was available for free on the Internet. His livelihood depended on the legitimate sale of only one or two software programs. If anyone thinks that piracy does not affect everyday people trying to succeed in business, they need look no further. The earnings of small operations like this are all put back into the business, to defray research and development costs and support further development. They do not have the resources to employ investigators to track pirates or lawyers to vindicate their rights civilly. They simply have an idea and a product a product which was, in this case, pirated and distributed around the world.
In regard to open source products, depending upon the facts, open source developers may seek to enforce their legal rights civilly, or, in cases where there has been willful infringement and certain criminal thresholds have been met, criminal prosecution may also be warranted. At this time, we are unaware of any referrals to law enforcement for open source license violations. As for reporting potential criminal infringement to law enforcement, the best way to do that is to contact your local FBI office.
.... I find it extremely hard to believe that your division truthfully represents the "people" of this country. It seems that your job is to help mega-corporations make "examples" out of college students and others who are too poor to defend themselves.
Yes, sharing copyrighted music and films is a crime. However, I see no justification for the insane penalties associated with file sharing and priacy. It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.
Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than rapists and violent criminals who use weapons?
Before answering your underlying question, which we do take seriously, let me address what has become a common misconception. The recent cases involving college students were civil suits brought by private parties, such as the Recording Industry Association of America (RIAA). The Department of Justice is not a party to these suits. We enforce our federal intellectual property laws through criminal prosecution, not through civil suits.
Your question argues that the current sentencing structure for criminal intellectual property crimes is too severe and is based upon damage amounts that cannot be supported. First, note that the federal sentencing structure is established by Congress and the United States Sentencing Commission. As federal prosecutors, we work within these guidelines. Second, the sentencing guidelines reflect the serious harm that is caused by piracy. In our answer to the first question above, we gave just one example of a small developer who has been harmed by piracy. That situation is not unique. The amount of pirated material available online today is staggering. In the course of prosecuting piracy we have found servers containing over 20,000 titles of pirated software, movies, music and games. The value of the copyrighted material on servers like this is frequently in the millions of dollars. Factor in the number of times those titles are distributed over the Internet, and the damage amounts skyrocket. The sentencing structure reflects this harm.
Further, deterrence is a significant element in criminal sentencing not just in IP crimes, but in all crimes. Until recently, many people believed that piracy was a consequence-free activity and that it did not harm anyone. The sentences that have been handed down in recent prosecutions have begun to change that impression, and will deter others from engaging in similar conduct.
By statute, a person convicted of one felony count of copyright infringement faces up to 5 years in prison (or 3 years, if convicted under the NET Act when the piracy was not done for commercial advantage or private financial gain). However, there are a number of factors that determine the actual criminal sentence a defendant receives, including the volume and retail value of pirated material involved, whether the defendant uploaded material to the Internet, and whether the defendant had a leadership role in a larger criminal organization. Also, a defendant's sentence may be reduced if, for example, he had a minor role in the criminal operation, or he accepts responsibility for his illegal conduct.
The single biggest factor in determining a sentence under the U.S. Sentencing Guidelines is the infringement amount attributable to the defendant. While your question correctly notes this, please understand that neither industry nor the government has the ability to dictate this amount. In determining the amount of damage, the United States must provide evidence of the number and value of the copyrighted works infringed by the defendant to the Probation Office and the court prior to sentencing. The United States must provide evidence to support its position such as evidence of the value of the...
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