Re: Absence of profit motive does *not* excuse infringement.

From: Bruce Hayden <bhayden[_at_]acm.org>
Date: Wed, 01 Feb 1995 02:41:41 -0700

Prof Netanel asks whether Michael Hines was talking about the LaMacchia case, which he suggested concerned criminal copyright infringement. I just wanted to point out that criminal copyright infringement, especially the recently enacted felonly provisions essentially do require a profit motive, whereas civil infringement has traditionally not so required.

>Michael Hines wrote of a "5th District decision" in which a case against
>a student accused of illegally copying software for free was dismissed
>on the grounds that copyright did not apply since there was no profit
>motive.
>
>Eugene Volokh replied that such a decision sounds unlikely since civil
>copyright infringement doesn't require any profit motive and since
>getting software for free might even meet the "private financial gain"
>test for criminal copyright. He concluded: "If anyone knows more
>about the decision to which Mr. Hines alludes, I'd love to hear about
>it."
>
>My guess is that Mr. Hines is referring to the LaMacchia case in which
>the District Court for Massachusetts ruled that an MIT student who
>operated a bulletin board in which subscribers were encouraged to
>download proprietary software did engage in criminal copyright
>infringement since the student in no way profited financially or
>commercially from operating the bulletin board. I suppose that those
>who downloaded the free copies might meet the "private financial gain"
>test, although I doubt that the test would or should be so broadly
>interpreted.

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The preceeding was not a legal opinion. It was my personal opinion, and mine alone. It was it not necessarily the opinion of my employer. The answers to legal questions are invariably highly dependant upon the precise facts involved. Thus, before making any reliance upon anything said here, you should consult with an appropriately skilled attorney.

Copyright 1995 by Bruce E. Hayden, All Rights Reserved. This work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain.

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Bruce E. Hayden                               7604 Vail Valley Drive 
bhayden[_at_]bga.com                                  Austin, Texas 78749 
bhayden[_at_]acm.org                                       (512) 892-7915
                     

Received on Wed Feb 01 1995 - 08:47:59 GMT