Posted on 03/21/2002 1:30:19 PM PST by Bush2000
Critics say punishment for ‘recreational’ piracy is too harsh
By
THE WALL STREET JOURNAL
March 21 — The U.S. software industry says it has a big problem, and it believes it has a solution: putting Robin Rothberg and some of his friends behind bars. Not everyone agrees.
MR. ROTHBERG, a 34-year-old Boston-area computer consultant, was for a year or two around 1997 a leader of “Pirates With Attitude” — an online software-piracy group. The Pirates — like hundreds or even thousands of other groups on the Web — do for software what Napster did for music, making programs such as games and expensive financial software available for free. No money changes hands, and the groups are mostly hobbies for members.
In 1997, after industry lobbying efforts, Congress made this sort of “recreational” piracy a criminal offense; previously, it was only a civil violation. Swapping more than $2,500 in software, regardless of the circumstances, became punishable by as much as three years in jail. Mr. Rothberg and 16 other Pirates With Attitude are the first big group of people to be faced with jail time under the law.
They were arrested in 2000; most pleaded guilty last year, and will be sentenced next month by U.S. District Judge Matthew F. Kennelly in Chicago. Many are expected to be given probation, but the government seems to be gunning for Mr. Rothberg and a few others, who could be sent to jail for more than two years.
The software industry describes the crackdowns as a much-needed step to deal with a rampant and costly problem that grows worse every day. “We feel the threat of jail time provides a greater deterrent,” said Mike Flynn, who heads up antipiracy efforts at the Software and Information Industry Association.
But many people see the “criminalization” of recreational, or noncommercial, piracy as part of a disturbing trend. “The penalty is completely disproportionate to harm that is caused,” said Marci A. Hamilton, a specialist in copyright law at the Benjamin N. Cardozo School of Law at Yeshiva University.
Selling pirated programs has always been regarded as a serious criminal offense. But recreational piracy — almost as old as the PC — was long treated as a civil matter, with those caught potentially receiving fines but not jail time. In convincing Congress to change the law, the industry said that even noncommercial piracy was expensive, pointing to 130,000 jobs and $1 billion in taxes it said was lost due to all forms of piracy.
No one in the debate thinks that stealing software should be condoned. The bone of contention is whether the punishment fits the crime. The music industry’s campaign against Napster has been conducted entirely through civil, as opposed to criminal, courts; critics say the software industry has the resources to do the same thing.
With software-industry trade groups cheering on the arrests, the courts are likely to see more such cases. In December, federal agents seized hundreds of computers in another big bust, this one involving a group called “DrinkOrDie.”
The fact that people now face jail time for what had for years been a civil offense is another indication of the growing power of copyright owners — not just software companies, but also the music and movie industries. These powerful lobbies are increasingly getting their way in Washington.
In 1998, for example, Congress extended copyrights by 20 years after heavy lobbying by companies like Walt Disney Co., which was worried about losing copyrights on Mickey Mouse and other icons. On account of the 1998 Digital Millennium Copyright Act, a programmer was kept in jail without trial for three weeks last year simply for writing some decryption software. And the entertainment industry is now lobbying Congress for it to force PC makers to fundamentally redesign computers to make some kinds of digital copying physically impossible.
“Things have tipped too far,” said Miriam Nisbet, legislative counsel with the American Library Association, which often testifies on copyright issues. “We are very much for protecting authors, but some sort of balance is very important.”
The software industry justifies the tough new laws by citing the economic harm it says it suffers from piracy. Many of the industry’s claims, though, don’t appear to bear close scrutiny. The industry often says, for example, that well more than 100,000 jobs are lost every year due to piracy. It comes up with that number through extrapolation: that if the industry would have sold, say, 20% more software had it not been for piracy, then it would also have had 20% more employees.
Timothy F. Bresnahan, a Stanford University economist, dismissed the analysis as “goofy.” “No industry executive would make that mistake,” he said. The economic analysis about piracy was prepared by the International Planning and Research Corporation; the group, which works as a consultant to software groups such as the Business Software Alliance, said it stood by its analysis.
The arrests tend to take up considerable federal resources: The DrinkOrDie bust came after a 14-month investigation involving multiple federal agencies. The busts are usually billed as major advances against computer crime. But some security experts, such as Lois Jacobson, chief executive of MIS Training Institute, a Framingham, Mass., security operation, wonder if law-enforcement resources wouldn’t be more effectively used against potentially more serious problems, such as corporate computer break-ins.
Also, the law requires judges deciding piracy cases to treat every copy of a pirated program as a lost sale, even though many people in the piracy world are students who couldn’t afford to buy the programs they are downloading.
The names of the software-piracy groups conjure images of anarchy-loving hackers. But the members typically turn out to be college students or middle-class professionals, often in the computer industry, with no other criminal records. All say they would have halted all of their trading had they been served with a civil warning.
While not defending what they did, several Pirates facing sentencing say there were extenuating circumstances — another reason they question if jail time is appropriate. And like many of those arrested, T. David Oliver of Illinois showed off racks of software he purchased legally at regular prices while a group member. Among the programs were copies of the Linux operating system — which can be had for free, quite legally.
Didn't somebody report here that Clowntoon directed the FBI to shift resources from counter-terrorism to copyright enforcement?
If it's parked on a public street, isn't it public domain?
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