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History of the law: Rampant file-swapping is precisely the activity that the NET Act was designed to punish. Rep. Bob Goodlatte, R-Va., the co-chairman of the Congressional Internet Caucus, drafted the law to close what had become known as the "LaMacchia Loophole." In 1994, David LaMacchia was a junior at the Massachusetts Institute of Technology who was charged with wire fraud for creating a file-swapping site on the Internet. But a federal judge dismissed the criminal charges, ruling that although LaMacchia could be sued in civil court, he was not guilty as charged. "It is not clear that making criminals of a large number of consumers of computer software is a result that even the software industry would consider desirable," said U.S. District Judge Richard Stearns. In an e-mail, Goodlatte said: "We would like to see more done to help guard against the wholesale violation of our copyright laws. We have helped secure additional funding for the Department of Justice to enforce the NET Act." The NET Act works in two ways: In general, violations are punishable by one year in prison, if the total value of the files exceeds $1,000; or, if the value tops $2,500, not more than five years in prison. Also, if someone logs on to a file-trading network and shares even one MP3 file without permission in "expectation" that others will do the same, full criminal penalties kick in automatically. "I'd imagine there are, at minimum, several thousand file-swappers meeting this definition," said Polk Wagner, who teaches copyright law at the University of Pennsylvania. To duck a conviction, said Polk, "you'd have to, in essence, prove you were an idiot. Not a problem for some, but a big problem for most file sharers, I suspect." Jessica Litman, a professor at Wayne State University Law School, says achieving a conviction wouldn't be trivial for prosecutors. "For purposes of a criminal prosecution, you'd have to show more than that the defendant made the files available--you'd have to show that she actually made or distributed copies," Litman says. "Not too difficult using today's tools, but you would need to show the actual copying of the file by third parties ratter than merely proving that defendant downloaded the files into her share directory." There already have been successful prosecutions under the NET Act of Web pirates--but not of peer-to-peer pirates. In 2001, a 21-year-old Michigan man named Brian Baltutat was successfully prosecuted under the NET Act for posting a mere 142 software programs on the "Hacker Hurricane" Web site. Jason Spatafore, 25, pleaded guilty to posting just one movie on the Web--"Star Wars Episode I - The Phantom Menace"--in December 2000. A quick check of Kazaa on Friday afternoon showed that there were 4.1 million users online, sharing some 800 million files. The odds of any specific person getting busted are pretty low, but someone's going to be a test case. Got your lawyer ready? |
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