Re: copyright under stress

On 06/22/2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> 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.

I am afraid I disagree with Bob's reading of the NET statute. My interpretation is the same as Eric's: the "total retail value" applies to the word "copies," not the word "works." A "work" doesn't have a retail value; only copies have retail value. I think Robert is confusing statutory damages, which ARE calculated on a per-work-infringed basis [see 504(c)(1)], with the NET Act, which (in my opinion) is calculated on a per-copy basis. But if you have any authority to the contrary, Bob, I would be happy to be corrected.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Jun 23 2000 - 21:51:27 GMT