Questions for DoJ IP Attorneys Asked and Answered

Date: November 25, 2003
Source: Computer Crime Research Center


... we decide to bring as criminal prosecutions. Rarely do the facts that we would consider for prosecution give rise to a (sustainable) fair use argument by the defendant or defendants although we certainly hear them from time to time. As to your final question, while there certainly is a right to fair use, it is not a violation of that right to make products that cannot be copied. Although such features may prove unpopular to some, ultimately it is for the marketplace to decide the viability of those products.



Is a distinction made between different levels of IP infringement?


I imagine that, from a legal standpoint, there should be a different point of view between a student that copies one software for personal use and a blatant thief who makes money out of selling the same copied software.


However, this question has two assumptions:


- The student would not use the software if it was not available (i.e. it is not a lost sale)

- Both activities are infringing (i.e. this question is not seeking to justify the first case)



I think this question is especially relevant since there are reports that the RIAA is now prosecuting students for "infringements" that are mostly gray areas (i.e. the infringement does not seem proven beyond a reasonable doubt, at least to the public).


Yes, there are distinctions made between different levels of infringement. Perhaps the most significant distinction is the difference between civil and criminal infringement. Historically, the vast majority of disputes about intellectual property rights enforcement have been dealt with in civil lawsuits, with the criminal law dealing with only a narrow subset of activity. Although there has been increased emphasis on criminal prosecution in recent years, it is still the case that most intellectual property enforcement is civil. The criminal copyright statutes don't allow anyone to be prosecuted unless he infringed a copy willfully, which is the most difficult type of intent to prove. The civil statutes, on the other hand, address infringement even if it was negligent or unintentional. Because we focus on the criminal IP laws, I will answer your question from that perspective.


There are two levels of criminal violations within the criminal copyright code. There are misdemeanors, which carry a prison term of one year or less. And there are felonies, which carry prison sentences of over one year (more on this below).


In general terms, infringement becomes a criminal matter (as opposed to civil) when it reaches a certain magnitude and when the conduct is willful. Within the criminal copyright statutes (17 U.S.C. sec. 506 and 18 U.S.C. sec. 2319) there are thresholds which must be met to trigger potential criminal sanctions. Simply put, these thresholds deal with the quantity and value of the works that are infringed.


Your question talks about the blatant thief who makes money out of selling copied software. This highlights another important area within the criminal law. The criminal statutes make a distinction between for-profit and not-for-profit piracy. Someone who is convicted of piracy for commercial advantage or private financial gain is subject to a felony penalty of up to 5 years in prison. By contrast, someone who infringes for reasons other than commercial advantage or private financial gain faces a maximum penalty of 3 years in prison (under the NET Act). Be aware, however, that the term private financial gain can encompass situations where pirated products are distributed or reproduced for anything of value, including other pirated products. In those instances, defendants will be subject to the 5 year penalty.


As we discussed earlier, there are a number of variables that determine a defendant s sentence in any particular case. However, these are the general distinctions made among various types of conduct which would be considered criminal in nature.


Finally, your question references cases being brought by the RIAA. As we've noted above, the cases filed by the RIAA are private civil actions which do not involve the Department of Justice. Also, you referenced the "beyond a reasonable doubt" standard within your question. In a criminal trial, the government must prove the defendant's guilt beyond a reasonable doubt to every member of a jury of twelve citizens. However, this standard is applicable only in criminal cases, not to civil actions like those brought by private industry. Civil actions are governed by a lower standard of proof.


In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain


A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis mine).

Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since


1. It was an mp3.

2. It did have the name of an RIAA-represented artist in the title, and

3. It was at a university.

If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?

I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.



Your question raises an important point. We feel strongly that everyone should comply with the requirements of all laws. Legal process under the DMCA or any other provision of law should be undertaken with the utmost care and good faith. Failure to do so undermines the credibility and effectiveness of our legal system.


Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.


We are unaware of any prosecutions for violating this provision of the DMCA at this time.



What is your opinion on the case of Daniel Peng? The internet at large is angry at the treatment of Peng by the courts - many consider sites like the one Peng created to be "common carriers" - that is, all Peng's site did was list the files other users had chosen to put on the academic network to be freely downloaded. Was it his responsibility to ensure that all the files listed on the academic network (which, unlike Napster, was a network he did not operate or design) were legitamate? While he may have been personally involved in pirating files (that is, he may have personally downloaded files to his computer) that was not the focus of the lawsuit. Peng was placed into a legal battle where he had no chance at victory, and as such had to settle out of court. What is your opinion on this case, and ones like it?


The litigation involving Daniel Peng was a civil matter between private parties. I don't know any more about the case than what has appeared in the public press and other media. Therefore, as I mentioned at the outset, we simply cannot comment. However, as promised, we answered two additional questions which were not submitted to us by Slashdot moderators to make up for not answering this one.


I am aware that companies spend large sums of money on holograms, authenticity cards, product activation schemes, anti-CD-copying schemes, serial numbers and so on. When investigating alleged copyright infringement, do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning? Does copyright infringement go down when companies put up roadblocks like these or do the infringers get away with it nontheless?



O'Leary:

Copyright owners have indeed implemented a variety of methods for deterring unauthorized copying or counterfeiting of their works. Software makers in particular often apply very elaborate authentication features to the packaging and media for their software in order to distinguish genuine copies from counterfeits.


In our experience, it appears that many of these methods have been effective at discouraging infringement and counterfeiting. For example, the use of unique authentication codes or serial numbers seems to have helped discourage some copying of software. The copy protection system used on DVDs seems to have been effective in discouraging many people from copying DVDs. And the advanced authentication methods used on software packaging (like...

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