Re: copyright under stress

On Fri, Jun 23, 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Thu, Jun 22, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > 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.
>
> Thanks for this information. I didn't think of the "retail
> value" as being price per copy, but rather the value of the
> book to the copyright holder if she were to sell the book.
> In the case of many of my books, they are not in print and so
> "retail value" is rather nebulous -- I suppose the "retail
> value" to a rare book collector might be different, though --
> does that make a difference?
>
> And I wonder how to apply this reasoning to something like
> the DeCSS code, which is said to be covered by copyright --
> one would have difficulty in placing a "retail value" on it
> since it is not sold separately to consumers.
>
> Do you think I could use your argument as a defense, or might
> a judge be inclined to conclude that the "greater the copying,
> the greater the offense?"

Well, as David Hale noted in an earlier post, the purpose of the Act was to prevent people like LaMacchia from giving away "free" copies of expensive software, especially highly focused and specialized software. So in the case of software, you'd simply ask, What does the rightful owner of that software normally charge for a copy of it (regardless of whether it's sold on disc or by download)? -- and that would be the retail value. Now in the case of books that are available ONLY electronically, and not sold in hardcopy at all, it seems to me that the question is, again, what does the owner of the copyright charge others for a copy of the work? It's my impression that your publishing company deals largely in public domain works, in which case there would be no question of copyright infringement in the first instance. If, on the other hand, the book is under copyright but simply not in print, the retail value might be the last price the book sold for when it WAS still in print; but I think a court would more likely find it to be the "fair market value" -- which could be fairly high in the case of a "rare" book. Again, however, I do not think the court would care how many actual downloads there had been, as long as there were at least 10. The argument would center on what the value of the original work is.

Regarding DeCSS, if it is normally made available to consumers free, then its market value would be zero, and offering copies of it for download would not be a violation of the No Electronic Theft Act (although it would, arguably, still be a copyright infringement, entitling the owner to an injunction even without money damages).

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