Comments on: Week in review: Revenge of the feds

Feds don't mind if the Force is with you, but they do have a problem if you have a copy of the latest "Star Wars."

RE: The Elite Torrent fiasco (Likely to be long)

Firstly, I have to say I'm almost shocked it's taken as long as it has been before federal action of this scale. Considering BT is nearly as centralized as Napster was - the only difference being you don't need special software to browse torrent links (just to download them) - I honestly expected there would have been large federal involvement well before this. On the whole, I'm not shocked that they've done what they did.

However, I have a problem with the disclaimer they've put on the Elite Torrents site which reads, in part: "Individuals who willfully distribute or download copyrighted material risk criminal prosecution under 18 U.S.C. 2319."

This is wholly misleading due to the inclusion of the phrase "or download" in the disclaimer.

If we look at 18 USC 2319, it provides the guidelines for punishment for violation of 17 USC 506a - the section regarding criminal copyright infringement. If we turn to 17 USC 506a, we find that "criminal" infringement is (copying the US Code, verbatim):

(a) Criminal Infringement. - Any person who infringes a copyright willfully either -
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States Code. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

In other words, simply downloading copyrighted material cannot be deemed "criminal" infringement unless it meets the second of the two requirements. However, the second requirement has a retail value minimum of $1,000 - so while one could argue that copying a blockbuster release movie such as Star Wars Episode 3 might meet that requirement as it has no declared "retail" value as of yet - the cap makes it nearly impossible to actually prosecute someone who occasionally downloads a game or cd mp3 rip or two.

I will say, however, that it does get a bit muddled when dealing with torrents because, typically, someone downloading via a BT client is also sharing what they have downloaded thus far - the backbone of the BT system. But if, hypothetically, you downloaded games from a website or a P2P program, there's no way you can be prosecuted for criminal infringement until you have copied over $1000.00 in retail value.

Let's look at this realisitically: At an ARV of $50.00 a game, it would take you TWENTY full game downloads before hitting the criminal infringement cap; at an ARV of $16.00 for a CD, it would take you 63 full CD rips to reach the criminal infringment cap.

In the case of Elite Torrents, yeah, they can prosecute them under the letter of the law, but the disclaimer is wholly misleading.

[Andrew J Glina]

Thanks

I didn't know that US law said that. That changes a lot.

[George Cole]

Criminal Infringement

http://www.analogstereo.com/jaguar_s-type_owners_manual.htm