Procecution file sharing

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Too technical. Not enough information. Not enough pictures. Any additional feedback? Submit feedback. Thank you for your feedback! The thrust of the NET Act was to lower the standard for mens rea in copyright infringement prosecutions by eliminating the requirement to prove a profit motive. In place of the pre-LaMacchia standard, the Act created two separate methods for proof of the scienter element of the crime:.

First, the NET Act imposed criminal penalties if the infringer is merely hoping for a financial gain. The statute then defines "financial gain" as the "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works. Sections , a 1 Emphasis added. The Napster system falls squarely within this definition because it operates by automatically scanning the user's hard drive, posting the user's music files on the Napster index, and making them available for uploading by other users, at the exact moment the user logs onto the system with the expectation of downloading free music.

In other words, Napster is involving its millions of users in conduct which is, arguably, a per se criminal violation of the Copyright Act. By downloading, the Napster user is infringing the exclusive right of reproduction; by uploading, he or she is infringing the exclusive right of distribution.

Sections 1 , 3 ; Playboy Enterprises, Inc. Webbworld, Inc. Under the NET Act, the "exchange" aspect of the Napster transaction, if willful and knowing, is a criminal act. Under the RICO statute, participants in groups formed for the purpose of illegal "file sharing" could, potentially, also be charged as members of a racketeering enterprise.

Section a ; 18 U. Sections , Second, the NET Act includes an alternate mens rea formulation for cases like LaMacchia, where the operator facilitates voluminous file-sharing infringements without any expectation of personal gain at all. Thus, under 17 U.

Section a 2 , it is criminal to willfully infringe a copyright:. Section a 2 ; 18 U. Sections b 3 , c 3 , b 5. Sections b 1 , c 1 e , b 3. Napster was financed by ultra-sophisticated Silicon Valley venture capitalists, who developed a base of more than seventy million 70,, users at "warp speed" by giving away literally billions of copies of other people's music. From the outset, Napster had intellectual property lawyers on board, who believed they could operate their piratical system under the cover of the "safe harbor" provisions of the Digital Millenium Copyright Act "DMCA".

The immunity provisions of the DMCA were enacted in , to shield internet "service providers" from lawsuits based on copyright infringements by their customers.

The Napster system sought to slip through this perceived loophole, by linking users seeking music with other users who have the music on their hard drive. Napster operates through the use of a search engine, index and dialog box.

The downloader enters the name of a recording artist into the dialog box, which conducts a Boolean search and locates the desired music on the C drive of another user. An index of available selections appears on the screen, and the downloader clicks on the desired music. Napster then connects the downloader and uploader together, and the actual exchange of the infringed music file takes place between the two users, over the Internet, outside of the Napster system.

Thus, Napster is doing exactly what Mr. LaMacchia did -- joining together uploaders and downloaders of copyrighted material for the purpose of infringement. The only meaningful difference is one of scale: Mr. LaMacchia's bulletin board operation enabled at most a few hundred copyright infringements. Napster has already arranged for, encouraged and facilitated billions of infringements. Section d , an internet service provider is immune for linking together copyright infringing users only if the service provider acts without knowledge of the infringement.

In the civil lawsuit, Napster's safe harbor defense was quickly stripped away by the RIAA's litigation attorneys, who used aggressive discovery to prove that Napster's executives knew full well that their system was being used to infringe copyrighted music. Indeed, the evidence which emerged demonstrated that is exactly what Napster was designed to do. In one damaging exhibit from the case, a co-founder of Napster wrote:. But what pushes a legitimate online file-storing business over the edge to criminal enterprise?

How might criminal copyright enforcement differ materially from civil enforcement? This article answers these questions and suggests guidelines for prosecutorial discretion. We then propose guidelines for prosecutors to consider before bringing a criminal enforcement action against filesharing services: Limiting prosecutions to theories of liability already established in civil case law, and targeting only those filesharing-service operators that openly defy civil enforcement actions.

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