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

Just to clarify the LaMacchia matter somewhat more than even Neil Netanel did, that student had been indicted for wire fraud on account of his having knowledge that his bbs was being used to up- and download commercial software. He had not been charged with criminal copyright infringement because one of the elements of criminal copyright charges is that someone be making copies willfully and for private financial gain. Since there was no evidence that he had himself benefitted by the activity going on on the bbs, no copyright charges could be brought against him as a matter of criminal law. The court dismissed the wire fraud charges based on a broad ruling of the US v. Dowling decision in which the Supreme Court said that one couldn't invoke charges like interstate transportation of stolen goods to deal with copyright infringements. The wire fraud statute was not meant, the court thought, to be a general purpose criminal felony provision to make criminal copyright-harming acts that did not satisfy criminal copyright infringement standards.

Pam Samuelson
University of Pittsburgh Law School
<psa2[_at_]vms.cis.pitt.edu> Received on Wed Feb 01 1995 - 14:16:06 GMT