Re: copyright under stress

On Wed, Jun 21, 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Tue, Jun 20, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > [...]
> > As I recall, the LaMacchia case was about the "sharing" of
> > unauthorized copies of computer software, not books.
>
> True enough. Now, tell me how you can tell the difference between
> an electronic book and electronic software or digital music or art?
>
> > Also, I don't think the No Electronic Theft Act makes sharing books
> > electronically a crime -- at least not until the number of different
> > books shared reaches such a high number that the Act's retail-value
> > threshold is met. They would have to be either very expensive books
> > or there would have to be a lot of them.
>
> The Act doesn't distinguish between books and other digital media.
> As for retail value, presumably the copyright holder would be able to
> determine that and come up with the appropriate figures. When it is
> a matter of giving away books online, yes there can be "a lot of them"
> -- my site has 40,000 hits a day and has been online for more than
> four years. Does anyone read them? Does anyone read my long email
> messages and reply to them?

That's not the way the No Electronic Theft Act is applied. If you have one unauthorized book on your site, it doesn't matter if you get 40,000 hits or 40 million hits -- as long as at least 10 copies are made of the unauthorized work, the NET Act applies. Each individual work infringed (not each copy made) is one act of infringement. If the book has a retail value of, say, $30, you're nowhere near being subject to the criminal penalties of the NET Act. (You'd still be liable to the copyright owner in a civil action, of course.) The aggregate retail value of all of the individual unauthorized works made available on your site must reach or exceed the NET Act threshold before the criminal penalties will apply. The actual number of people who access your site and copy those works need only be 10 or more. Specifically, you would need to post copyrighted works whose total aggregate retail value exceeds $2,500 in any one 180-day period, AND at least 10 copies of each of those works would have to be downloaded, before the NET Act would apply. So if you posted, say, 150 infringing books on your site, you might be getting close. On the other hand, you could reach the same retail value threshold by offering as few as a dozen unauthorized software programs.

Robert C. Cumbow
 Graham & Dunn PC
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 rcumbow[_at_]grahamdunn.com
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