Re: droit de suite

Before this thread disappears, I would like to clarify two points regarding the No Electronic Theft Act:

On 04/11/2000, Marty Hayes <9ball[_at_]hostsite.net> wrote:
>
> On Mon, 10 Apr 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
> >
> > However, I would point you to the No Electronic Theft Act
> > of 1997, which criminalizes even giving away copyrighted
> > works, if they are published on the WWW.
>
> Eric -- call me crazy, but from where I sit, the act of giving away
> copyrighted works was a breach of copyright law prior to the No
> Electronic Theft Act of 1997. The Copyright Act of 1976 states that
> one of the rights of copyright holders is the *exclusive* right to
> distribute (and by default, also restrict distribution) of their works.

I believe Eric's point was that giving away unauthorized copies of copyrighted works is made a criminal offense by the NET Act. Prior to that, giving away unauthorized copies was infringement, but it was not a criminal offense. See U.S. v. LaMacchia.

And On April 12, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Mon, 10 Apr 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote, in part:
> >
> > the No Electronic Theft Act of 1997 ... criminalizes even giving
> > away copyrighted works, if they are published on the WWW.
>
> Only if at least 10 copies of one or more works with an aggregate
> value of $2500 or more are distributed within a single 180-day
> period. A low threshold, but not one that seems likely to be met
> by the classroom example you gave.

That is not correct. The NET Act lowered the threshold to one or more copies of one or more works, with an aggregate value of more than $1,000, during any 180-day period. A much lower threshold (perhaps still unlikely in the classroom example, which is probably a fair use anyway), but enough to give one pause.

> > So in the normal case of innocent infringement, instead of having
> > this settled by letters from lawyers, some people go to jail, when
> > the work is on the web.
>
> I'd be interested in knowing of any instance in which an "innocent"
> infringer went to jail. In the first place, "innocent infringement"
> is a defense to liability in a civil copyright infringement action,
> and relates to whether the infringer knew or should have known that
> the work was protected by copyright. I seriously doubt that such a
> defense would fly in a criminal copyright infringement case brought
> under the NET Act.

I think Robert may have mistyped his message, because he got it backwards. Innocent infringement is NOT a defense to copyright infringement in a civil case; it may reduce the amount of statutory damages or attorneys fees, but it is not a defense. It is, however, a defense to criminal copyright infringement, which must be "willful." That has been defined to mean that the person must know they are infringing a copyrighted work. I certainly agree that it is extremely unlikely that anyone will be going to jail for low-level infringements; but the intended effect of draconian criminal penalties is to deter anyone from even getting close to the line.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Apr 13 2000 - 18:28:21 GMT