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Meet the DoJ's 'Anti-Piracy' Lawyers
Answering your questions will be the attorneys assigned to prosecute intellectual property crimes in the Department of Justice's Computer Crime and Intellectual Property Section (CCIPS). Spearheading this group will be Michael O'Leary, Deputy Chief for Intellectual Property who oversees the day-to-day intellectual property enforcement operations. Here is some background on CCIPS and their intellectual property efforts:CCIPS began as a small group within DOJ in 1991, with a focus on network crimes (e.g. hacking into machines, destructive worms and viruses, denial of service attacks), intellectual property crimes (e.g. software piracy and counterfeiting), and electronic evidence issues. CCIPS is part of the Criminal Division of DOJ (which, as its name suggests, is primarily responsible for enforcement of federal criminal laws). Today, the section has grown to almost 40 lawyers, of whom about a dozen focus on IP issues. (Please keep in mind that it will be the IP prosecutors answering questions here, so save your non-IP-related hacking or electronic evidence issues for another time.)
What do the attorneys assigned to IP at CCIPS do? The IP prosecutors in the Section are responsible for establishing and enforcing the Department's overall intellectual property rights enforcement program, including the prosecution of federal intellectual property crimes. In some instances, CCIPS handles the prosecution of intellectual property cases. More frequently they work closely with prosecutors in the U.S. Attorneys' Offices around the country who handle the vast majority of federal criminal prosecutions, both IP and non-IP. They also provide training on IP issues for prosecutors and law enforcement, both domestically and internationally. Other responsibilities include reviewing new policy proposals, legislation, or international agreements related to IP, and providing advice to other government agencies or components of DOJ. The prosecutors also work closely with foreign law enforcement counterparts to coordinate IP enforcement activities around the globe.
While they are committed to fully answering your questions, as Department of Justice attorneys, they are subject to various Federal laws, Department of Justice rules, and ethics rules. They are not permitted to provide legal advice to individual private citizens. This means that there is no attorney-client relationship between CCIPS and Slashdot readers, users, or moderators (and answering questions on Slashdot should not be interpreted as creating one). Therefore, they will not answer questions seeking legal advice. Finally, they cannot discuss ongoing cases, investigations or related hypotheticals.
To learn more about the Department of Justice or the Computer Crime and Intellectual Property Section, visit the following web sites, www.usdoj.gov and www.cybercrime.gov.
Finally, they cannot discuss ongoing cases, investigations or related hypotheticals.
What do they mean by "related hypotheticals"?
If they mean "implications of the new laws", then it makes the whole interview slightly pointless...
The ENIAC Demo Competition
That's easy. The 'official' answer is that they prevent piracy from eating up companies' profits so that they can continue making programs for 'consumers' to buy. Otherwise there would be no programs.
(Disclaimer: I am saying that that would be THEIR answer, not mine. OSS is truly a lovely concept.)
Because rape and murder don't quantifiably lower shareholder value. He who has the gold makes the rules. Remember, it is no longer "The United States of America." It is the "Incorporated States of America."
I hope you see the error in your logic. Recreating someone's furniture would be more the equivalent of you hearing a song on the radio, you getting your band buddies together and recording a cover of that song as close to the original as possible, which, mind you, IS legal.
What do you see as the governing reasons behind the intelectual property laws? And do you find any inconsistencies in reason or effect with the laws as written? Do you see any ways the laws might be changed to make them better? For example, would it make sense for lawmakers to better codify examples of fair use or is this best left in the hands of the courts?
Please provide your definition of Piracy and your definition of Sharing with respect to software and to music.
In the past, piracy was considered the illegal duplication and resale of software for profit. The key word there is RESALE because money was changing hands.
Sharing was just what it sounds like: sharing copies of software -- where no money changed hands -- which was considered a legitimate marketing vehicle by software companies because it gave them an increased market share and propagated proprietary file formats, even though they didn't immediately realize revenues based on a sale. Instead the model was get people to use it and maybe they would pay for the next version of the software.
Now sharing has transformed into piracy through industry campaigns and media (mis)use of the term, even though no money ever changes hands on file-sharing networks like Kazaa and the ill-fated Napster, or when you load copies of the same software package on two computers.
Can you explain this? I don't recall the courts being used to prosecute for sharing in the past, although the practice has now become common.
Although these are excellent questions, I'm not sure that these are IP questions.
They seem more like national security/International scope questions. I don't think that these IP lawyers can answer them.
The surprise isn't how often we make bad choices; the surprise is how seldom they defeat us.
This question is answered here.
What is the department's current understanding of the boundary between "Fair Use" and infringment?
For software:
- Reverse engineering: For interface / file format compatability? For workalike replacement? How much can proprietary code be examined? What must be done to stay legal (or at least beyond the interest of the Departmen) and PROVE it?
- Code copying: How much before infringement begins? Is there a clear definition of the boundary if it isn't lines of code?
For music/movies/other entertainment programming:
- Time-shifting: Is it "Fair Use" to capture broadcast programming for listening/viewing at some other time?
- Space shifting? Is it "Fair Use" to make a copy to use in your car, workspace computer, etc.?
- Backup? Is it OK to make a backup copy - provided if you sell the copy or original the other is also transferred or destroyed?
- Sampling for inclusion of snippets in other works? If so, how much is "Fair Use" before "Infringement" begins.
In either software or entertainment programming: Does the department interpret the DMCA or other anti-"piracy" laws as trumping "Fair Use" rights, such that activity that would be legal under copyright "Fair Use" alone is illegal under anti-piracy laws?
In particular: Does the department believe that defeating copy-protection is a crime even if it is only used for activities that would be "Fair Use" if copy-protection were NOT defeated?
I recognize that this is both a matter of policy and court rulings, and that both are subject to change in the future. I also realize that the opinions of the department and the courts may differ - what I'm after is the department's current interpretation of what MAY be illegal and IS likely to result in prosecution by the department.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
RIAA, Grayzone & those other outfits like to blur the distinction between a true pirate operation & simple bootlegging. Surely most of /. will recognize that there's a big difference in a commercial operation in, say, Singapore pressing thousands of counterfeit copies of a hot CD & enthusiasts swapping concert recordings of their favorite performer. One is like a criminal cooking thousands of gallons of moonshine & sticking it in empty Jack Daniels bottles & the other is like a fellow making a few gallons of homebrew for himself & his friends. RIAA does not understand that distinction or does not want to make that distinction.
It is always easier to go after the little guy than to try to track down organized criminals.
Speaking of organized criminals, how about the recording industry itself? Many moons ago, they excused selling CDs for 3x the price of vinyl because the compact disc was "new technology." Today, CDs are no longer new technology, but we're still paying the ramped-up price. And the "industry" wonders why kids share files ... heck, they can't afford to buy the CDs!
"Obviously, I'm not an IBM computer any more than I'm an ashtray" (Bob Dylan)
Keep in mind that these prosecutors don't write the laws. They just enforce them. Your question would be better directed to a member of Congress.
They're prosecutors.
Their job is to assume guilt and be on the side of the plantiffs, and bring to trial anything they feel they can get a conviction on.
They're supposed to be adversarial. They arent supposed to be objective. Thats the judge and jury.
I don't need no instructions to know how to rock!!!!
Granted that there is file sharing that violates both the intent and the letter of US law, and that the law should be enforced: to what extent is the "enforcement" of such laws crippled by the behavior of the victims? What do you think of the argument that the ubiquity of illegal file sharing is less a function of the availability of the technology than of an imbalance between the cost to consumer of the works being illegally copied and the demand for those works? Or, by extension, that the artificial limits placed by the copyright holders on the legal distribution of their work (staggered release dates, different pricing in different markets, etc.) encourages illegal distribution to compensate for those limits? At what point does the cost of enforcing these laws become the responsibility of the victims rather than of the majority of taxpayers who do not violate these laws?
*Scenario* A man takes a gun and murders someone with it.
Now who is to blame? The gun manufacturer or the idiot who killed someone? Now there are legitmate legal uses for a gun (skeet shooting, etc), but should the makers be help responsible because the user used it for an illegal activity - NO. P2P has legitimate legal uses, but it is not the makers fault if noone uses it that way. What it all comes down to is the ser made the choice to break the law, and in the end should be the one who is responsible.
Great Linux Site
The RIAA has made it clear that it believes the Home Audio Recording Act is narrowly focused on analog copies, and that *any* digital copying of music is copyright infringement. This seems to fly in the face of fair use. A couple of concrete examples to focus the questions:
Whereas I used to make mix tapes to send home to my family, I now make mix CDs. The RIAA thinks this is illegal. Do you?
I regularly copy CDs to listen to in the car, mostly to minimize the loss if the car is broken in to. The RIAA thinks this is illegal. Do you?
When my friends ask to borrow a CD, I generally burn them a copy, rather than risk them losing or destroying the original. The RIAA thinks this is illegal. Do you?
What's good for the syndicate is good for the country. --Milo Minderbinder
(These might be a little out of order, so mix-and-match.)
1. Intellectual property is property because it has a commercial value in the marketplace.
2. Infringement deprives the IP-owner of that value.
3. The IP laws are designed to stimulate innovative thinking and implementation of new ideas, technologies, etc. by creating incentives for IP authors. Ultimately, stimulation of IP creation is supposed to benefit the general public (e.g., new life-saving drugs discovered via the promise of the patent system's exclusivity protections).
4. If infringers are permitted to deprive IP of its value, the incentives to create new IP will be diminished.
5. Intentional infringement (or whatever the standard is for criminal infringement) is a particularly egregious deprivation of the value of the IP.
6. Intentional infringement (unlike unintentional infringement) is easy to prevent--just don't do it--so more severe punishment is not unfair to the infringer.
7. Criminal punishment should apply where the wrongdoing adversely affects the general public's interests. Criminal authorities represent the public's interests.
The only way I see to battle piracy is to provide MORE content. For example, an MP3 isn't an MPEG. An MPEG isn't a JPG. etc etc. You bundle your CD with an interview, a comic book, a special login and pass for special content on the website and maybe even with a special entry form to be registered in a contest to meet the artist in person. With all that content (at a reasonable price), it would be impossible to download all of it. You have to AGAIN make a product we WANT to buy.
This is my sig. There are many like it but this one is mine.
An excellent question which should be repeated somewhere where it makes a difference (in the Supreme Court and before Congress). Here, the answer has to be "See the constitution." The justification for what they do is to enforce the laws, which are (supposed to be) made in accordance with and in support of the Constitution.
Oh, the Constitution's justification, in case you've forgotten or haven't read it (which is fine if you're not a USAian) is that progress in arts and sciences is encouraged by offering and enforcing a monopoly on creations.
The job of these people is to enforce that monopoly. I think that's a reasonable job, worth the effort. I do agree with you that the terms of that monopoly are far to onerous, and need to be reduced; but this isn't their concern, nor is it something that they can do anything about.
-Billy
I'm sure you get many more complaints than you are able to prosecute. Could you explain in some detail the factors that go into deciding which complaints to examine further?
If you RTFA, you'd know that this question won't get answered because it constitutes legal advice pertaining to a personal situation, something they cannot do (legally or ethically).
Though he could have phrased it better, no, he did not ask for legal advice on a personal situation. He asked the larger question (again, phrased poorly in a manner that appears personal) of "Do I have the right to download music I already own in some format, specifically, analog?".
However, I have little doubt the DoJ will not want to touch that one with a 10-foot-C&D, since the RIAA would say "no way in hell" but US law says "probably". Mustn't step on the toes of one's corporate masters, after all.
When the movie studios advertise DVDs, the advertisement always says "Buy it today!" (or "By it [insert-time-frame-here]") or "Your last chance to own [insert-title-here]!".
Yet the movie studios insist that we have not purchased the content, but merely licensed it. It seems that the studios are trying to have their cake and eat it too. Isn't this be a clear-cut case of false advertising? If so, why isn't the FTC cracking down on this?
The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
This question has two parts:
Part One: As far as what I have read about copyright law in the United States, there seem to be only two criminal offenses in Title 17, the anticircumvention provisions in Chapter 12 and the criminal penalties for "willful" copying of copyrighted works "for purposes of commercial advantage or private financial gain, or" copying copyrighted works that "have a total retail value of more than $1,000" in Chapter 5 (which is obviously arguable -- especially since the statute goes on to say that having committed the act does not prove guilt).
Unless there are other criminal offenses in Title 17, the vast majority of copyright law is civil and not criminal. How do you justify your use of public funds to help private corporations with their civil cases?
Part Two: Almost everything I have read about copyright, patent, and trademark law has stated that ideas are not property. Copyright, patent, and trademark are specific sets of privileges (not rights, as rights are given by God or nature and cannot be taken away by law) with respect to ideas, but are not ownership over those ideas per se.
If ideas are not property, then what is "intellectual property"? Can you justly call yourself "intellectual property" lawyers when you are actually intellectual privilege lawyers?
All data is speech. All speech is Free.
What can be done to ensure that anti-piracy efforts have no adverse effect on legitimate network traffic?
Can sufficient enforcement be done by simply targetting "blatant" infringers who advertise copyrighted material they do not have right for as being available for download by stranger? Or will filters be required to flag "suspect" transfers, and then follow up with a demand for proof that you had the right to transfer that data? For example: How do you differentiate between someone giving away somebody else's music, and somebody transferring their own copies from their home to the laptop while they are on the road?
Are data transfers entitled to a presumption of innocence?
The way I see it, when you buy music in any format, be it 8-track, record, CD, or cassette, you are buying not only the media, but a lifelong "license" per se to have in your possession a copy of that song in any media. You already gave a record label their cut for buying the song, so you shouldn't have to buy it over and over again. It's basically the same as copying your CDs so that you have a backup if the CD breaks/deteriorates. As long as you have the original container that held the media, you should be able to prove, basically, that you once paid for the right to have the songs.
Not necessarily. You bought the license to the (for instance), vinyl version of the music, not the CD version. There are likely quality differences between the two versions (most likely, the CD version is a remastered version of the vinyl). That's like saying "hey, I bought the VHS version of a movie, so I'm entitled to the DVD version now!" You're talking about having access to free upgrades in quality until you die simply because you paid for the music once. While that would be nice, I don't think they ever intended the business model to work that way... very few products work that way, in fact.
And, I think, the problem with downloading MP3s as your "backup" for your vinyl/tapes/etc. is that you can't be sure the MP3 was ripped from the particular media version of the music you own.
Can you explain the constitutionality of prosecuting someone based on what files their computer contains? How can you prove that they've actually stolen the data and haven't uploaded it from their own cds or from having acquired the mp3s/files in some legal way? There seem to be some pretty apparent 4th amendment issues here.
They didn't have any trouble stepping on MS's toes.
They made a lot of noise, ended up with a pathetic set of penalties, and haven't even bothered pursuing MS's substantial noncompliance with what those penalties.
I don't consider that to involve much stepping on toes. They cost MS a few million in lawyers, and not a whole lot more.
Many people believe that Copyright it self is mostly an amoral construction. In normal decent exchange people get paid for a job done ONCE - whereas in music and movies we see how people get paid over and over and over for the same job. Something which is seen as disgusting and amoral pratice. How do you feel about that?
... I find it extremely hard to believe that your division truthfully represents the "people" of this country. It seems that your job is to help mega-corporations make "examples" out of college students and others who are too poor to defend themselves.
Yes, sharing copyrighted music and films is a crime. However, I see no justification for the insane penalties associated with file sharing and priacy. It seems that companies can make up some absurd figure in the billions, claiming it to be actual damages, without any sort of proof they have really lost that much at all from file sharing.
Can you please enlighten me as to why software and media "pirates" as well as other "computer criminals" are in many cases treated worse than violent criminals who use weapons and rapists?
"You spoony bard!" -Tellah
#include "disclaimer.h"
#undef LEGAL_ADVICE
No, I didn't buy a license to anything -- I bought a copy. I have the right to use that copy as a piece of my property: I lack the right to make and redistribute copies of it, since that is the creator's exclusive right under copyright and I have no license (i.e. permission) to do so.
Copyright does not include the idea of a "license to use". It is concerned only with the right (or lack of a right) to make and distribute copies, derivative works, and suchlike. The rights that a creator receives under copyright are rights to restrict others' copying and the making of derivative works -- not rights to restrict others' noncopying use of legally-obtained copies.
Licensure enters the picture only when copying enters the picture. I do not need a license from J. K. Rowling or her publisher to read The Order of the Phoenix. I also do not need a license to take my purchased copy, cut it up, and make paper airplanes from it -- or to lend it to my friend. I would need a license to legally scan it into my computer, make a PDF of it, and distribute it online -- a license that Rowling et al. have no interest in selling me, certainly.
It is trivially simple to debunk the claim that purchasers of copies of media are purchasing "licenses to use" the media: licenses are always explicit. When authors and publishers negotiate the publisher's purchase of rights to a book (a license), that license is written out as part of a contract. The publisher does not simply accept the physical manuscript pages and pay the author (purchasing a copy, albeit the only copy perhaps): an assignment of copyright licensure is in a contract, entered into knowingly by both sides. Thus, if a media purchaser has no demonstrable contract with a copyright owner, no license can be said to exist ... and you cannot unknowingly or unintentionally enter into a contract!
(Further, a license and the violation thereof is not necessary to make copyright violation illegal: it is illegal already, as the default state of works is to be copyrighted. Copyright is not a matter of violation of contract; it is a matter of violation of the law.)
Copyright is really simple: don't copy and distribute stuff you didn't create, without the creator's permission. Trying to complicate things with "licenses" for the common reader or listener is nothing short of villainy.
In the last 20 years there has been a vast change in the amount of information available to the average individual, an increase in the ways that information can be used, and an continual - even accelerating - change in information distribution (since the internet is really in it's infancy.
Do you feel that the current legal basis and defination of fair use for copyrighted works needs to be re-examined at the legislative and/or judicial level?
Please elaborate on why you feel yes or no, and if yes, what (if any) specific issues have you seen develop over the last few years which you feel would benefit from this review?
I am saying that that would be THEIR answer, not mine. OSS is truly a lovely concept.
Well, I don't necessarily think that OSS is the only alternative to what we have now. I support the idea of temporary monopolies on intellectual property, and in making money off of closed source content based on that model. The problem is that the current system has absolutely no regard whatsoever for that temporality, relegating the argument to what rights we can eke out in the name of fair use.
Without that temporality, however, no public good is realized from the encouragement of the arts, industry, and sciences. It is of much greater public interest, therefore, to define and strictly enforce that temporality than it is to prohibit sharing files.
First, thank you doing this interview. Most people here take IP very seriously and want laws and law enforcement that does what the Constitution intended.
Contrary to what many lay-people believe, open source software relies (heavily) on copyright and the legal system that assures those rights. In fact, among Slashdot readers are a large number of people who own copyrights to open source software. My question is what services your organization offers in practice to "real people". Our community creates software whose quality competes with that of multi-billion dollar corporations, so we clearly have a significant interest in having our own rights as authors protected. We all have no doubt that if Jack Valenti finds a website selling pirated versions of his movies that law enforcement will descend upon the infringer with a fury comparable to that weilded against drug smugglers and violent criminals.
Few among us would really object to enforcing the law against such a clear violation, however, I cannot help but wonder if there is equity in the system. I wonder whether an individual author's rights as a copyright owner would be similary protected? For example, if substantial quantities of code that one of us has written ends up in a company's product in a way that clearly violates the terms of an open source licence, how would the infringed copyright holder go about seeking your services?
What policy governs your decision whether or not to act on behalf of a copyright owner when a complaint is raised? What assures that the heavy hand of the law protects an individual's rights with the same fury that it defends those of the RIAA or a major software corporation?
It would be better suited for a lawmaker, but it's not irrelevant here. In fact, it's an excellent question. If you read the "ground rules" provided by the DOJ, they state some of the responsibilities of the respondents:
Other responsibilities include reviewing new policy proposals, legislation, or international agreements related to IP, and providing advice to other government agencies or components of DOJ.
It is a very good question as to what kind of reviews, and advice they give with regard to these new pieces of purchased legislation, and how they believe they help taxpayers and citizens to whom they are ultimately responsible. The follow-ups to this question are also interesting if they give a substantive answer.
Finally, the problem with the "ground rules" that were set by the DOJ is that you cannot ask most types of questions. They are lawyers, you can ask them anything you want... but... you cannot ask them the following:
- Ongoing cases and investigations (OK, fair)
- Related hypotheticals
- Legal advice
Most substantive questions could be discarded as one of the above. What should I ask them? What are their favorite movies? What OS they use at work and at home?The notion of making patents public, as I understand it, is based on the notion of sharing research and innovation for the common good, while at the same time allowing the researchers an opportunity to gain a financial reward for their work.
:) )...
Music, while a lot of fun, doesn't have the importance to the advancement of society that patentable research does, which is why music is copywrited (copywritten?), not patented. Music doesn't have an intrinsic value, only a perceived value, so music which is not perceived as valuable is available cheap in the bargain bins (anybody want these BackStreet Boys CDs? Anyone? Hello?*sound of crickets chirping*)
The problem here is that "consumer" and "public" are two different things. A consumer is a private individual, wheras the public refers to society as a whole. The trade off in the case of music is, in theory, at least, the exclusive rights to distribution of music is possible (bad for the consumer) in exchange for a viable music industry (good for the public). Please note, I did say "in theory"; I am not in any way endorsing the methods and practices of the RIAA, nor am I saying that their current business model is viable or that Hillary Rosen is a good and decent person with all our best interests at heart (and I am a musician with RIAA connections...boo hiss).
Individual consumers would benefit from a system of distributed, rather than exclusive, licencing where anyone could make reproductions of a recording, paying a nominal fee to the artists and whoever ponied up the cash to record it. It would cause immense structural changes to the music industry as a whole, however, which is why they're fighting tooth and nail to stop it, and probably mean the end of high budget "stadium rock" and music videos (you be the judge of whether thats good or bad for society, it really is a matter of opinion), since the large reserves of capital that exist now would dissapear. Admittedly, that capital would be distributed more evenly between musicians (which would be good for me
Here's an idea. Whats needed is a consumer organisation, multinational in scope, lobbying to change copyright laws in numerous jurisdictions to allow this distributed licence. Such an alliance could also serve, with minimal fuss, as an independent distribution channel on a global basis, bringing the economies of scale which would make it a viable competitor to the existing recording industry. Abandoning the concept of a physical product would make the task even easier (I should point out that I am not opposed, in principal, to DRM, but only if it is done in a way that does not inconvenience the consumer or infringe on their rights. No one has invented such a system yet; lets bring those mighty OSS lovin', slashdotting brains to bear and see what can be accomplished. In fact, how about 5% of every song purchase goes to fund development of non-intrusive DRM? Music funded software development...this is getting good). If this happens, listeners get music, musicians get to eat, programmers get work, and Hillary Rosen gets to stand on a street corner selling pencils from a tin cup: in other words, win, win, win, win!
Unfortunately, I've uttered (theoretical) approval for DRM, and played devil's advocate for the RIAA's view of the world, so this post and all the ideas in it will be modded down severely and lost forever. Oh well...good thing I patented the idea..
What are some of the things that the DoJ lawyers that are working on this case have done to prevent their own famlies from becoming part of the problem they are now prosecuting people for?
Welcome to the net of 1000 lies. Upgrades are scheduled soon that should bring us to the 10,000 lies mark.
3. First, some background: Many people on Slashdot and in the Open Source and Free Software communities detest the phrase "intellectual property". The argument is that IP is not "property", but a privelege granted to holders for the public benefit. I have always contended that the issue is irrelevant because whether or not IP is a "right" it can still be limited. For example, your right to hold land is limited and can be revoked if you fail to pay property taxes. A similar argument revolves around the term "piracy" and "theft" in relation to IP.
Dude, what are you SMOKING?
The "Free Software" communities are extremely sensitive about intellectual property. In particular, attribution could be described as one of the cornerstones of open-source morality. The communities take great care in protecting IP and flushing out IP issues. The communities see IP as more than a commercial tool, they see IP as authorship and respected boundaries of innovation.
That was a bizarre leading question dude... But I quite enjoyed the jedi-mind trick that you employed afterwards...
It is your personal duty to fight for what is right on a daily basis. Ignoring injustice is identical to approving