The NET Act, fair use, and willfulness--is congress making a scarecrow of the law?

• Author: Heneghan, Brian P.
• Position: No Electronic Theft - Law overview

"We must not make a scarecrow of the law, Setting it up to fear the birds of prey ..."--William Shakespeare--Measure for Measure (1)

INTRODUCTION

On Tuesday, December 16, 1997, President Clinton signed H.R. 2265, the "No Electronic Theft (NET) Act" into law. (2) Big business entities including the software, record, and movie industries, lobbied Congress to pass the NET Act to close the "LaMacchia Loophole." (3) The NET Act closes the loophole by providing criminal penalties for certain copyright infringements, even when the infringer has no profit motive. (4) This statute reverses copyright policy that has been in existence for over a century by eliminating the requirement of commercial exploitation to trigger criminal penalties for infringement. (5) Moreover, the new law is both overbroad and dangerously vague. (6) It provides jail terms for a person who "willfully" infringes a copyrighted work or works which have a total retail value of as little as $1001. (7) The criminal penalties are out of proportion to the crime and ignore the inherent tension between the rights of copyright holders and copyright users.

Copyright does not exist merely to protect intellectual property. (8) As reflected in the Constitution, the ultimate purpose of copyright legislation is to foster the growth of learning and culture for the public welfare, and granting exclusive rights to "authors" is a means to that end. (9) The NET Act and many other recent pieces of legislation, such as the Sonny Bono Copyright Term Extension Act, have apparently lost sight of this purpose. (10) The proponents of the NET Act are almost exclusively large corporations who are justifiably focused on protecting their investments. (11) Unless criminal penalties are somehow necessary to benefit the public, the NET Act contravenes the original intention of copyright protection.

The Net Act enjoys strong support from the Software Publishers Association, U.S. Copyright Office, the Department of Justice, Adobe Software, Microsoft Corporation, the Recording Industry of America, and the Motion Picture Association of America. (12) A representative of each of these groups addressed the U.S. House of Representatives, speaking in favor of the Bill. (13) These speakers generally engaged in flag waving speeches that in some instances exaggerated the extent of the problem and ignored the real problems connected with imprisoning these non-violent offenders. (14) It is worth noting that no organizations representing musicians, artists, or authors addressed the House of Representatives concerning this bill. (15)

Critics of the NET Act are mostly concerned about three specific problems. The criminal penalty bar is set too low (16), the criminal penalties are triggered by the vague and undefined term of "willfulness," (17) and the effect of a fair use defense is unclear (18). These problems combine to create a law that could have a "chilling effect" upon free speech. (19) The NET Act has also been criticized as being over broad and jeopardizing people whose acts did not warrant criminal sanction. (20)

"Laws developed prior to consensus usually serve the already established few who can get them passed and not society as a whole."--John Perry Barlow (21)

PROBLEM BEING ADDRESSED

The same technological advances that have increased the potential value of copyrighted material have simultaneously threatened to make it worthless. (22) The ease of making "perfect" copies has driven the level of piracy to unprecedented heights. (23) Moreover, the distribution of copyrighted material via the Internet exponentially compounds the problem. (24) For example, the MP3 music file compression technology enables music fans to download songs from the Internet to their computers. (25) A high percentage of MP3 files on the Internet are unauthorized copies that generate no revenues for the recording industry or artists. (26) The film and software industries are also experiencing a dramatic increase in the pirating of their products. (27) Worldwide losses due to piracy are estimated at $20-$22 billion annually. (28) This serious problem for the creative industries is only going to become more pronounced as technology continues to progress. (29)

CONFLICTING COPYRIGHT PHILOSOPHIES

Technological progress has resulted in new forms of copyrighted material and new ways to access the material. (30) This development has resulted in considerable debate as to the appropriate level of copyright protection that should be afforded these new forms and uses. (31)

On one side are the copyright maximalists who have been lobbying for "thick" copyright protection. (32) Scientists, librarians, and other groups oppose the maximalist agenda and favor users' rights over the interests of big business. (33) The maximalist approach is exemplified by Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, who is also Chair of the widely criticized National Information Infrastructure (NII) White Paper. (34) In addition to Lehman, several members of Congress, including Senators Orrin Hatch (R-UT), Patrick Leahy (D-VT), and Jon Kyl (R-AZ), as well as House Representatives Bob Goodlatte (R-VA) and Howard Coble (R-NC), have advocated an expansion of Copyright protection. (35) Generally, copyright maximalists favor a broadening of copyright protection into previously unprotected areas such as databases, increased criminal penalties for copyright infringement, and protection of digital copies with technology to prevent illegal uses. (36) Senator Leahy has stated that without special protections, copyright owners will not release information on the Internet, severely limiting the amount and types of information available to the public. (37)

The maximalist position is opposed by a group of copyright scholars and business people who believe that recent increases in copyright protection impede scholarship and threaten free speech. (38) This group asserts the World Wide Web was formed to allow people access to a global, diverse advanced information system. (39) Copyright theorists, such as John Perry Barlow, assert that the recently proposed and passed copyright legislation is an attempt to "preserve by law what can no longer be sustained by necessity." (40) An alternative approach is seen in the free software or open source software movement. (41) In 1984, computer programmer Richard Stallman founded the anti-copyright Free Software Foundation. (42) This organization's goals are to challenge current thinking about intellectual property and to replace proprietary software with programs people can exchange with each other without copyright restrictions.43 "Free" software means that users can copy or modify it, not necessarily that it is available without charge. (44) The idea is that users of the free software will make improvements and make the source code to the improved program freely available. (45) In addition, some legal scholars argue that since copying is an unavoidable incident of using, or even viewing, information on the Internet, "reproduction is no longer an appropriate way to measure infringement." (46)

The NET Act, therefore, represents a significant step toward accomplishing the maximalist agenda by providing for criminal penalties in response to low levels of infringement and removing the requirement of a profit motive. According to Barlow, the ability of the maximalists to successfully lobby Congress for protective legislation is because big business interests can provide significant campaign contributions. (47)

"Breaking rocks out in the hot sun, I fought the law and the law won." --Bobby Fuller Four (48)

CRIMINAL PENALTY BAR

The criminal penalty bar is set too low. (49) The NET Act was ostensibly passed to close the "LaMacchia Loophole." (50) LaMacchia, however, was accused of infringing copyrighted material valued at over $1,000,000, not $1,000. (51) Assuming willfulness is shown, the $1,000 bar represents a "bright line" trigger for the criminal penalties. (52) This new trigger fails to differentiate between various types of non-commercial infringement. (53) Moreover, the distinction between civil and criminal liability is dependent on the retail value of the item infringed and the number of copies made. (54) Once an item is posted to a web site, unless access is restricted, the number of copies downloaded is not within the control of the person who posted the material; the information is available to anyone who visits the site. (55)

The low threshold for criminal liability is a concern for scientists who often post their papers on the Internet in order to enrich the scientific community. (56) Scientists have engaged in this practice even though the copyright often is owned by the journal that originally published the piece. (57) Even if a scientific paper is worth only $1, a scientist with ten articles that are downloaded an average of 101 times each would exceed the $1,000 criminal penalty bar. (58) Recently, a former college student sued her professor for posting her paper online without her consent. (59) If the student can demonstrate that her paper had a retail value of only $50 and it is downloaded 21 times, under the NET Act the professor could be subject to criminal penalties. (60) This type of problem is even more pronounced in the context of someone posting information to a USENET newsgroup, where a million copies may be created by transmitting the information to the group. (61) Assuming that criminal sanctions for copyright infringement on the Internet are necessary, it should take at least $100,000 to trigger them.

"When I use a word, it means just what I choose it to mean--neither more nor less."--Through the Looking Glass, Lewis Carroll (62)

WILLFULNESS

The criminal penalties are triggered by "willfulness," a vague term in the context of criminal law which is not defined in the Net Act. (63) Judge Learned Hand decried the use of the term "willfulness" in...