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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.
When it comes to the scale of illicit software trading in the US, is there a sense of how much is coming from outside the country as opposed to purely domestic activity? I would think that stemming the international traffic would be much more difficult due to varying legal climates in different countries.
Stop by my site where I write about ERP systems & more
What is your definition of the term "Fair Use" in regard to any software or music we buy?
"Some fight for law. Some fight for justice. What will you fight for? One day, you will see."
I am aware that companies spend large sums of money on holograms, authenticity cards, product activation schemes, anti-CD-copying schemes, serial numbers and so on. When investigating alleged copyright infringement, do you find that these anti-IP-infringement techniques have a real effect on preventing such things from happenning? Does copyright infringement go down when companies put up roadblocks like these or do the infringers get away with it nontheless?
Can you summarize the public good performed by your efforts that a taxpayer, who is neither a stockholder nor employee of the content industry, can realize and should support as a necessary function of the federal government?
Question I usually like to see answered by anyone:
What is the one thing that people usually don't understand about you or what you do that you wish they did?
Do you ever take up a case where you disagree with the cause?
Ok, I guess my question would be this: with the ability for everything to be digitized, we are experiencing a revolution or a renaissance of information in which all information can be shared. With this Pandora's Box opened, is it truly possible to keep information from being shared or do they believe that they are fighting a losing battle? In other words, Is this going to be another 'war on drugs' in which money is pumped into a battle that can never be won or do they honestly believe that legislation will be passed that can be easily enforced upon the masses at large?
This is my sig. There are many like it but this one is mine.
If we are unhappy with some related current legislation, what is the most effective means for us constituents to work on changing these laws? Is writing our congressmen the only/most effective way or is there something else we can do to have our opinions heard?
I'm curious about the criminal definition of IP Theft and Infringement. It has always been my stance that such items, within reason, should be a matter settled in a civil suit. It is extremely difficult to deprive a party of intellectual property, unlike tangible property. With this in mind, I don't feel there is truly a need for an IP Theft/Infringmenet branch in the Department of Justice.
On to the actual question: Wouldn't the vast majority of cases be handled with the correlated "hacking" or other forms of breaking and entering to steal the property in question, without actually devoting the resources for what is largely a civil matter between individuals or companies? I'm guessing my stance on this comes from a misunderstanding as to what it takes for the government to actually get involved in IP theft/infringement.
Also, I understand that while some companies and individuals do not have the resources to fight IP theft/infringment in court, it seems programs could be setup to assist them. It still seems a large pool of legal resources for what should be a civil matter.
Dacels Jewelers can't be trusted.
Do you see a distinction between (what I would consider) a true "pirate" -- one who copies and distributes, for profit, intellectual property -- versus a file sharer?
"The market alone cannot provide sufficient constraints on corporation's penchant to cause harm." -- Joel Bakan
A lot of noise has been made (in the techie world, at least) about the desire of several copyright holders to enforce anti-piracy laws by taking matters into their own hands; music companies deleting music files off of privately-owned computers, movie studios doing the same thing with movie files, etc. For the moment, this sort of thing is not legal.
My question is: As a lawyer, how do you view bills that aim to legalize this sort of activity? When it comes to "making it legal", is there a connection between letting the RIAA perform 'hacks' that would be illegal for private citizens, and allowing pot to be smoked only by those who have a prescription, or only law-enforcement officers to obtain concealed weapon permits? Is there a danger of reaching a point where we go from "The movie studios can shut down your website if they think you're letting people download movies" to "If you think the neighbor stole your mailbox, you can break into his house to get it back"?
But do you? I.e., do you think that the laws as they exist are a) fair to consumers and b) in the spirit of the intent of Copyright Law as it was originally conceived? If not, what would you change?
What are their role involving enforcement of US laws on partiees outside the US as opose dto say the efforts of the BSA?
Don't Tread on OpenSource
I hear the term "Fair Use" bandied about all the time in these discussions. From a legal standpoint, does it exist? Do I have a right, that will stand up in a court of law, to make a copy of software/music/data for my own personal use?
If I do, does making an "uncopy-able" product violate that right?
There are 01 kinds of cars in the world. The General Lee, and everything else.
I'm trying to figure out at what point do you differentiate between "fair use" and "piracy". At what point does "fair use" stop and "piracy" begin? Would letting an immeadiate relative or direct friend make use of a software package be considerered "fair use"? Can you provide an example of what would be considered "fair use" that would contradict the licensing terms of an EULA?
We hear frequent mention in the press, that most internet crime happens from people outsied the US - Skylarov, the Pakistani who exposed the Passport flaw, open gateways from Asia pumping spam etc.
It is really astonishing to note that the most powerful nation with the best detectives and sleuths can be deterred for so long, by a few novices operating from abroad.
Question:
To control piracy, is it enough that the action taken is within the US, or a global consensus needs to be built up?
You have mentioned the word IP freuently - does it stand for copyright or patents?
If you keep throwing chairs, one day you'll break windows....
It's easy to find cases where people get light sentences for crimes that, at least to me, seem much more damaging to society than a few swapped files. How do you justify asking for billions of dollars of so-called damages or years of jail time when people who shoplift some CDs receive little if any punishment?
I don't really have a good question to ask them, but I might suggest that they take a look at the dslreports thread referenced at this link. The guy(s) those people are investigating are actually trying to sell other people's software for profit, not to mention spamming people to do it, which is a good deal worse than those who share music at the cost of their own bandwidth.
Oh, I take it back, I do have a question:
How much effort is being spent these days on investigating old-fashioned for-profit organized-crime software piracy, like selling WinXP out-of-the-box at local computer shows, versus pursuing home computer users sharing files over peer-to-peer networks?
When talking about a P2P application, who is the one to blame for the piracy? The programmers of the P2P app, or the people who use the application for piracy?
"Some fight for law. Some fight for justice. What will you fight for? One day, you will see."
I there pressure from any source (industry, executive or legislative) to look for and execute prosecutions on 'high profile' situations that will bring in headlines or dramatic convictions?
Thanks and I hope you keep up 'the good fight' that is truly the good fight.
What does a job/career such as this pay? (Avg. Yearly)
Is this a Type of career that you are basically "married" to your job?
iF yOu WAnT to C YOUr iP agaIn gAThEr tWO MilLIon dOLLArS IN Non - cONsEcuTivE TweNtY's AnD AWaiT FuRThER iNstrUctIoN
Here is a question I have been dying to ask for a long time, but never
got a chance until now for which I thank you and slashdot.
As we all know, laws cannot be defined like scientific formulas, but rather
have to evolve to suit the needs of the society and to adhere to the spirit
of what the founding fathers intended.
My question is this. When you persue, and prosecute intellectual property
cases (esp. related to music industry) what sort of guidelines do you use
here to differentiate between fair use of listeners and property rights of
conglomerates ? Do you follow all cases int he same way ? Are there
references made to the text by the founding fathers and their ideas regarding
balancing soceities need for creativity and owners(not necessarily creaters) need
for profits ? I would like to know what goes on in the closed rooms where decisions
need to be made regarding allocating tax-payers resources to persue cases where
it may not always be clear where the fair line needs to be drawn. Do you ever
get the feeling that not making a good judgement over long period can lead to civil
unrest in digital domain, as has happened before?
Are there times that you personally feel that enforcing a law to its word is unfair
but have to nevertheless enforce it to adhere to the letter ?
What do you think is the future of some of the current IP laws and future proposals
from a law enforcement perspective ? Do you forsee any major obstacles for enforcement of
some of the stricter digital rights laws that are on the table ?
Thanks again,
Too Bad.
DO NOT PANIC
In the eyes of the Justice Department what is/are the greatest threat(s) to IP in the US?
Friendly
do you have any special metrics or do you just use the claims presented by plaintiffs? if you have metrics of your own, how were they calculated?
...vividly encapsulates that post-Watergate/pre-punk/coked-up moment when you could trust no one, least of all yourself.
How does your Section handle Open Source/Free software licenses? for example how do you check if a FTP server is allowed to distribute software?
Can CCIPS prosecution of people who violate licenses of Open Source software?
Is there any sense as to the actual guidance of the cryptography export laws? As an American citizen living in the Netherlands, I've been faced with a lot of problems, especially in this area. For instance, I'm legally unable to get source code for projects such as Kerberos (although it's been possible "through other people." I don't get the feeling people take this very seriously, and was wondering what you guys thought.
How do you wish to punish cyber criminals coming from other countries? For instance, if a Dutch hacker cracks a US corporate server (ignoring US/Dutch relations for a bit), would it be possible to prosecute this person? Are there UN regulations for computer "terrorism" (as I'm sure Bush would have it called, ehehe :)
What are your perspective's of Microsoft's Palladium technology and it's legalitites?
How often do internet security cases get tried?
I'm sure I could go on with tons more, but I think this is probably enough.
Kind regards, Devon H. O'Dell
Is a distinction made between different levels of IP infringement?
I imagine that, from a legal standpoint, there should be a different point of view between a student that copies one software for personal use and a blatant thief who makes money out of selling the same copied software.
However, this question has two assumptions:
- The student would not use the software if it was not available (i.e. it is not a lost sale)
- Both activities are infringing (i.e. this question is not seeking to justify the first case)
I think this question is especially relevant since there are reports that the RIAA is now prosecuting students for "infringements" that are mostly gray areas (i.e. the infringement does not seem proven beyond a reasonable doubt, at least to the public).
The ENIAC Demo Competition
How does the DOJ distinguish between IP disputes between parties, as opposed to cases in which they feel that the resources of the department would be well-spent investigating the matter?
There must be some kind of rule, or otherwise the DOJ would already have invested the offices of IBM and re-possessed all disputed copies of the alledgedly infringing AIX operating system.
Is the DOJ sure that these rules do not favour the larger corporate parties? Is the DOJ sure that their services are not misused in cases where ordinary contract dispute resolution methods or civil procedures would be more appropriate?
As Law and Technology are two fields with little in common, what kind of real-world working knowledge do IP lawyers have? Do they simply prosecute/defend cases based on what their told by a handful of "experts" or do they actually know how to use the technologies in question. Is there a call for more Engineers-turned-lawyer for cases such as this? I am about to finish my bachelor's in EE, and am thinking of law school. Thanks.
As a Canadian I am curious as to the co-operation you receive (if any) from agencies outside the US? Specifically Canada but also internationally in general.
mitd -- Made in the Dark
"One good thing about spam... You don't gotta answer it"
Given that from a legal standpoint (and, many would argue, an ethical one) there is a distinction between "copyright infringement"/IP violation and "theft", what views do you have on the regular and incorrect/misleading application of the latter term by such people as the RIAA and law enforcement? Such misuse of language seems disingenuous, and taints the arguments of those who might otherwise have valid points to make about the morality of misuse of intellectual property rights.
It seems that if there are ethical arguments against piracy and other forms of copyright misuse, those arguments can and should be made on their own merits without the introduction of psychological wordplay apparently designed to confuse the public and cloud the debate. Accordingly, what steps are being taken to clarify the correct terminology and to avoid jingoistic use of words like 'theft', 'thieves' and 'stealing' amongst law enforcement and elsewhere?
Why is the government so willing to bend over backwards to help copyright holders, yet it does seemingly little to protect individual fair use rights?
As it stands, if I were to break the copy-protection scheme on a CD to make a backup of it for personal use, I would be in breach of the DMCA, even if I had no intention of making an illegal copy of it. Piracy is already illegal, those who commit it are going to do it anyway - this law simply makes criminals of ordinary people.
-- Even if a god did exist, why the fsck should I worship it?
Obviously, you have law degrees, but what other degrees or field expertise do you have (such as computer science backgrounds, library degrees, etc.)? Obviously, not everyone is going to understand every single patent out there, but do you handle cases exclusively by what's on paper, relying on the claims of industry experts, or do you provide your own understanding of at least some of the key fields?
----------
Something cleverWhat is the DOJ's position about damages companies claim for copyright infringement? Are they taken as-is, or does somebody verify claims?
For example, say Joan Filetrader has a Metallica MP3 in her shared directory and is eventually prosecuted for copyright violation. It seems like it is standard practice for Metallica's copyright holders to do math like "Well the connection was up for 1 month, and her bandwidth is 8Mb/s, that means that she could have transferred 2,500,000 MB that month, and since the MP3 is 5MB she cost us $10,000,000 in sales."
Does the DOJ review that math and do things like verify what the likely impact on the company's bottom line was?
What type of legal training do investigators have?
/ephraim
I'm asking this as a techie who is considering attending law school. What coursework has been helpful to your jobs? What types of internships or other jobs have prepared you for your work? How many of you worked with technology as a programmer/sysadmin/etc. before going into law and/or law enforcement? Any other advice for a techie interested in IP technology law?
What is the Department of Justice's Computer Crime and Intellectual Property Section's annual budget?
How do you decide which case / offenders to go after? Do industries / lobbies have influence? What about congress? What about individual citizens? Can you just go after whomever you have a personal grudge? What kind of checks are in place to monitor the triage process? Who are you accountable to?
-P
Why have ONE conviction when you can have TWO?
Why has corporate profit become more important the Fair Use and a healthy Public Domain? Why is it legal to use copy prevention techniques that will hinder/remove fair use and could stop items from going into the public domain? Why is it legal for the corrupted media giants to continue to pay off the dirty politicians to extend copyright laws? Don't you feel that this creates a perpetual copyright and thus is against the constitution? What US laws mention anything about "IP"? Since when is an idea your property? If you have an idea and share it with anyone, then that knowledge is no longer just your property. It is now information that is stored in my brain as well and no one has the right to remove that from me. Knowledge is meant to be free. If I share an idea with you, I have lost nothing in the process and yet I have enlightened you. Stop the corporate monopolies and greed, remove software patents and restore competition and innovation to the IT industry.
If Tyranny and Oppression come to this land,
it will be in the guise of fighting a foreign enemy. -James Madison
Why. Does. the Department of JUSTICE have a stable of lawyers to enforce copyright when that is a <blink> CIVIL </blink> matter?!!!
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
How strong is the "lost sales" argument that copyright holders usually make when prosecuting "not-for-profit" copyright infringement? Especially when the product is not tangible (software and music, not CDs)?
Although it is often mediatic, any student of accounting will immediately recognize that the number is merely an estimate of available infringing copies, further inflated by the assumption that every copy would have been bought. Both can be easily altered to craft an alarming number.
(Disclaimer: this question is not seeking to invalidate these numbers, but seeking to know how strongly they are considered from a legal standpoint).
The ENIAC Demo Competition
How much of the Justice Department's time and resources will be allocated to the search for pirates? Is there a cutoff point of damages (real or imagined) that an illicit copier would have to produce to even have the matter worth investigating? -- Funksaw
How do you feel about the anti-circumvention provisions in the DMCA, specifically how they apply to non-copyrighted or public domain materials. It seems to me that this clause has granted corporations an unlimited copyright on any material they publish. This is not only unfair to the consumer, but unconstitutional. IANAL, but you are, so what is your opinion?
Visualize the world of wine
Do you see Open Source Software (Linux, UNIX, BSD) platforms and applications a threat to DRM security? Would you prefer the world be controlled by a more DRM-friendly platform (for greater control over alleged IP infringement)? Or was that all propaganda put fourth by another agency to discredit yours?
Informatus Technologicus
We often hear that software piracy costs X amount of dollars or music piract costs Y dollars every year. How are those numbers arrived at?
For example, let's say Pete Pirate grabs a copy of Microsoft Office and the latest Brittany Spears album from some site.
Microsoft has a list price of $499 for a full version of Microsoft Office XP Professional. But no one in the history of computing has ever paid full retail price for any copy of office. warehouse.com, about as mainstream as you can get sells it for $65 dollars less. You can get it for much less if you shop around or purchase it as part of an OEM deal.
Similarly, Brittany Spears's latest cd has a list price of $19. No one pays that either.
So did Pete pirate $520 worth of product or $447? That's about a 14% increase in damages.
And what's to stop a company from artificially inflating the MSRP of a product in order to inflate the damages?
A frequent gripe with the geeks here at slashdot, myself included, is that apparently legislators are not sufficiently well informed to create IP laws, frequently proposing and enacting laws which either constrain individual rights in favor of protecting those of big corporations (like the DMCA), or are simply not effective, because they can never patch the frequently referred to "analog hole" which is always a required step for humans to get to the information.
Given that for ethical reasons, you may not give your honest opinion on said legislation since you are required to enforce them, I'd simply like to know if I can trust that you are sufficiently well-informed to give council on these ever emerging new IP legislations. Do you feel that you truly have sufficient technical experience as opposed to your obvious legal ones? Can you elaborate on what type of experience you feel helps to qualify you to truly understand the ramification of these legislations?
Warning: Opinions known to be heavily biased.
In some cases this decision is clear cut: the largest and costliest criminals should be dealt with first. But in a lot of cases on your Cybercrime page (notably, some of the targets in Operation Decrypt) you chose to prosecute a few of the "small fry." The same dragnet that netted convictions for a $14 million offender also snared a few guys who only caused losses of $7000. Interestingly, among the latter persons were some of the most skilled embedded security experts alive today.
So, how often do you target offenders based on pressure from the crime victim, high visibility, high (criminal) intelligence, or other factors not directly related to the crime? And who, besides the prosecutor's office, weighs in (indirectly or directly) on these decisions?
I know that most of the cases involving IP infringemnet that the media gives any attention to are computer related. I feel almost certain that there is noncomputer IP infringement that occurs as well (think corporate espionage). How many of these noncomputer related cases do you get involved in? Why or why not?
My question is on similar lines, so i thought I'd rather reply to this post:
" We hear frequent mention in the press, that most internet crime happens from people outsied the US - Skylarov, the Pakistani who exposed the Passport flaw, open gateways from Asia pumping spam etc.
It is really astonishing to note that the most powerful nation with the best detectives and sleuths can be deterred for so long, by a few novices operating from abroad.
Question:
To control piracy, is it enough that the action taken is within the US, or a global consensus needs to be built up?
You have mentioned the word IP freuently - does it stand for copyright or patents?
Bride wants to marry IBM and screw Linux. Brother MS willing to pay any dowry."
If you keep throwing chairs, one day you'll break windows....
Here in Britain, we recently shut down the governemental body that regulated our train services because they were tending to take the side of the small number of contact personnel at the train companies that they dealt with on a day to day basis rather than the side of the faceless multitiude of passengers who they only knew through a few angry mails.
Given that your department will (in the vast majority on cases) be working on behalf of a very very small number of copyright-holding organisations against potentially millions of nearly anonymous file sharers, how will you prevent this 'going native' phenomenon biasing your investigations in favour of people you having a close working relationship with, and how will you defend yourselves against the inevitable accusations that you have 'gone native' and are a 'private police force' for the copyright holders?
A pizza of radius z and thickness a has a volume of pi z z a
What is your opinion on the case of Daniel Peng? The internet at large is angry at the treatment of Peng by the courts - many consider sites like the one Peng created to be "common carriers" - that is, all Peng's site did was list the files other users had chosen to put on the academic network to be freely downloaded. Was it his responsibility to ensure that all the files listed on the academic network (which, unlike Napster, was a network he did not operate or design) were legitamate? While he may have been personally involved in pirating files (that is, he may have personally downloaded files to his computer) that was not the focus of the lawsuit. Peng was placed into a legal battle where he had no chance at victory, and as such had to settle out of court. What is your opinion on this case, and ones like it?
My question is twofold: First, In your workings with IP laws have you run across any particularly staggering shortcomings/ loopholes/ abuses that you were forced to work with/ around? and Second, If you were able to change any aspect of IP law... both how it is applied and how it is regarded/ adhered to... to make the system 'better,' what would it be? Thanks for your time!
Hail Eris
From what I have seen the vast majority of your efforts go to protect corporations and companies with vast resources. Can you give some examples where your department has helped individuals or the underdog versus a major company? How about examples where your department has exonerated those falsely accused?
On the SCO case, versus IBM. What is the generally accepted legal definition of "derivative works", in terms of IBM's ownership of JFS and RCU? Because AFAIK, the version of JFS that is currently inside Linux originated at some point from the OS/2 operating system, a non-Unix-based system, and then was ported to Linux and AIX. I'm wondering if SCO has legal rights to software that is ported from one OS to another, then to another, where the second porting target OS is licensed by SCO.
Of course, I'm also wondering if it's legal to send my evil minions against Darl McBuyed.
This is not the sig you're looking for.
My question has to do with how you feel at the end of the day. I realize that opinions will probably vary among team members, but I am curious as to how many of you go home at the end of the night feeling regret over your role in prosecution? In other words, do you really believe the laws you are using to prosecute are Just or are you tossing aside your own stake in the outcome ala "The Law is the law"?
To clarify, the phrase "Everyone deserves a good defense" can be applied to the classic example of the defense lawyer who defends someone who they know is guilty of some heinous act.
When asked to prosecute a case, do you consider the long-term, chilling effects a "win" could potentially have on research and development, fair use, etc. and does it leave you feeling soiled or do you honestly believe it is your patriotic or moral duty to prosecute using laws in which you may or may not completely believe? Can you refuse to take a case based on your own convictions or does that equate to professional suicide (at least with regards to your position with the DOJ)?
Because I have paid license fees for the same music several times, (albums, 8track then cassettes, then Cd's, now going to digital) I have been pleased to see the courts uphold the common-sensical concept of time-shifting and space-shifting. My question is, have you personally ever asked a friend or relative to videotape a show for you while you were out of town and is there some fundemental difference betweeen doing that and downloading an audio only recording of music you have already paid for (sometimes over and over again.)
I know that most of the cases that get media attention involve computer related IP infringemnet. I feel almost certain that there is noncomputer IP infringement that occurs as well (think corporate espionage, printing illegal copies of books). How many of these noncomputer related cases do you get involved in? Why or why not? If the case is why not, what makes the computer related IP infringement criminally illegal and the noncomputer related not so? Or is there another branch within the DoJ that handles the noncomputer related?
Microsoft's entry into the console gaming field, the XBox, has been the cause of a bit of controversy in the IP arena. Microsoft thinks "hacking" the XBox is a violation of their intellectual property. A process now exists that allows a different OS to be installed on the XBox without physical modifications. From my point of view, this alternate use of the XBox only constitutes using the device in a manner not originally concieved of/allowed for by the designers. Does this use, in a manner not preconcieved of/planned for by the designers, constitute an IP violation? I do not believe you must sign any form of EULA when purchasing the XBox.
The cancel button is your friend. Do not hesitate to use it.
Please characterize the types of criminals that you go after. Mostly warez rings? Businesses that don't license all their software? College kids with FTP sites?
I'm sure it's impossible for a group of 40 people to round up every IP criminal. How do you ensure that you aren't ignoring a piece of the pie?
There are no trails. There are no trees out here.
I think one thing that people struggle with is understanding what is actually legal to do with the media they purchase. I'm not talking about ethics, but the actual letter of the law about what I am allowed to do. So to simplify, what's legal or illegal about the following cases:
1) Copying a CD to tape to listen to in my car
2) Ripping a CD to listen to on my computer at work
3) Loaning a CD to a friend
4) Ripping a copy of a CD and giving those files to a friend
5) Ripping a copy of a CD and putting those files on Kazaa
6) Selling copies of the CD
Related to this, how does the volume of these activities influence them? Is it legal to make one copy of a CD for one friend? What if it's for 100 friends? or 500 friends? We can talk endlessly about the spirit of the law and the ethics of it, but the letter of the law is critically important here.
This sig has been temporarily disconnected or is no longer in service
If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?
Slashdot needs to interview Natalie Portman.
The world's full of kids of all ages who like to take things apart to see how they work, and engineers who need to find out how things work. There are some open questions about how current law affects them.
What are the department's policies and guidelines about whether an instance of reverse engineering violates intellectual property rights? Would the department consider criminal action against someone who reverse engineered a product if the click-through license said not to?
What factors would the department consider if trying to decide whether a security researcher's work was legitimate?
Does the department recognize a public interest in publicizing flaws in commercial software, even if it involves extracing proprietary information?
Finally, from your personal perspective as believers in the rule of law, what are the top two or three changes you see as necessary in US IP law?
When Kevin Mitnick was tried, the 'damages' listed in his trial were calculated simply by taking the arbitary value that DEC, et al. attributed to the software he copied, and adding them all together (regardless of any actual damages suffered). This (and being the first big cybercrime case that the Justice Dept. wanted to come out strong against) was a primary motivation in the overly severe (which has been admitted post-trial) sentance handed down. Combined with this, unprecidented media hype to Kevin being held without even a bail hearing pre-trial.
How has the Justice Department's methods of assigning damages, investigation tecniques, and tech savvy (ie. telling the difference between hype and fact) improved since the Mitnick case? And would Mitnick have been tried as severely if he was being tried by today's Justice Department as opposed to the 'wild west' of the computing era?
I'm disturbed by the way large conglomerates determine and demand damages based upon projected profits should a product's IP have not been violated and piracy had not occurred.
It's a somewhat flawed argument to claim that $5,000,000 worth of software was confiscated in a piracy raid when off the shelf, at the point of purchase, the software would only have had a $2,000 street value (I'm referring to how much the pirates price the products).
Basic economic theory would point out to you that the lower the cost of ownership, the greater the demand for that product. Even if the retail value of a shop's pirated products had been worth millions, I can't imagine how they would have been able to sell these products that the prices they were pegging it at.
Although piracy is wrong per se, how much in lost profits should a company be allowed to attribute to piracy? I think cases where students from universities are hauled up for file sharing and the penalties imposed on them are totally absurd although the crime is similar (piracy) but the damage, obviously can't possibly be so high.
How does the law make sense of this? How far should IP be protected and would we ever see an end to some of the whimsical claims made by IP owners?
There are specific requirements in the DMCA that plaintiffs must fulfill. Failure to fulfill these requirements invalidates any statement of "good faith" in pursuing defendants. Yet, sites are being shut down which have no content simply becuase a spider program trips over some keywords.
Can the DOJ advise or require plaintiffs to verify the content (as the DMCA requires them to do) before sending out the lawyers? Can they penalize them for failure to do so?
Would it be possible for the DOJ to require plaintiffs to apply for a certificate of good faith or some such document to prevent abuse by the plaintiffs?
AAny suggestions to that effect that might be more feasible if those are too resource consuming?
The message on the other side of this sig is false.
The distinction between natural and intellectual property (i.e., rivalrous vs. non-rivalrous goods) makes the case for copyrights/trademarks/patents actually being property pretty thin.
For example, it is at least much more difficult to place prior restraint on and/or proper defenses around music, names, and ideas than on and/or around a house, jewelry, and a car.
I'm not opposed to copyright (and patent, and trademark) protection, and in fact, I think such things are desirable as incentive to produce, although the current copyright term is so ridiculously long as to be an anti-incentive.
However, it is not clear to me that we the public instead of they, the copyright holders, should be paying for the investigation and punishment of violators, especially given the much greater scope of the problem and consequent cost versus the protection of natural property.
After that long-winded preface, my question is therefore: why has the government chosen to make IP enforcement a criminal, rather than civil, matter, given the added costs, both in fiscal and libertarian terms?
Kyle
[ home ]
In constitutional law we occasionally hear reference to the term Constitutional Repugnancy. Under the theory of constitutional repugnancy, laws that are ignored or disregarded by the majority of the US citizenship is repugnant, and they're forth not constitutional.
In your opinion, has copyright law fallen into this area of being constitutionally repugnant, and if not, how far from constitutional repugnancy is current copyright law?
I have a question regarding caseload that is probably best split in 3 parts:
a) Since IP covers several somewhat related areas (e.g., copyrights, patents and trademarks), how are your enforcement efforts split between these areas (i.e., how often do you track down trademark violations versus file sharing, etc.).
b) How many cases do you pursue in a year and what kind of categories do they fall under (e.g., individual file sharing, corporate patent infringement, etc.).
c) What percentage of those cases end up at trial?
similar to this topic, I'd like to present a question to copyrighted works on dvd that end up going into the public domain (ex: "A Boy and His Dog", early Don Johnson movie). As something like this would be in the public domain, yet bound by the DMCA as the dvd is css'ed, how are these instances treated in terms of "piracy" and the dmca itself?
Now that it has been with us for a few years, and doesn't seem to be going anywhere, how has the DMCA (Digital Millenium Copyright Act) affected your job? I would assume that you now see cases of this nature, are such frequent, and how do such cases often go? Is this law really providing for the common good of the people, or is it simply creating more problems than it is solving?
And, of course, what are your views on this law, has it actually helped to slow the tide of copyright infringement, or not? And considering the boundryless nature of the internet, do you expect that a law, such as this, or any IP law for that matter, will be effective for much longer?
Necessity is the mother of invention.
Laziness is the father.
1. What laws do you least like enforcing?
2. (somewhat related) Do you think IP laws have become too tilted in favor of IP holders? If so, what reforms would you like to see enacted?
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. OK now the questions:
A. Do you agree that legally there is no such thing as Intellectual "property"?
B. If the answer to A is "yes", does it bother you a great deal that an inacurate term is being used to describe a class of laws?
C. Do you think the term "IP" is an Orwellian attempt to control language and create a right that formerly didn't exist? Likewise, do you think "file sharing" as opposed to "piracy" is equally Orwellian but in the opposite direction?
D. Do you think this whole argument is just silly?
E. Does language really change thought, or better yet (since you're a lawyer), do you think it has an impact on laws over time? I have some friends who are lawyers, and they say that a lot of old English words remain in the law because they have established meanings that don't change over time. Be that as it may, is the legal system vulnerable to "newspeak"?
F. Can you suggest some unbiased replacements for "IP", "piracy/sharing", and "theft/(law)viilation"? Better yet, are there obscure words being used by lawyers that might help us if they found their way into the common vernacular?
4. The other end of the spectrum--what laws do you most like enforcing? What gives you the "warm fuzzies" and makes you feel it's all worthwhile?
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Given that the internet spans borders more easily than any previous technology, what do you expect can (or should) be done to provide IP protection at an international level? It seems to be all too likely that any such attempt will result in a least common denominator set of regulations that grant IP rights along the lines of the strictest rules in any affected country. At the same time there is a risk that IP protections could be used to seriously restrict free speech.
What did you learn about your interpretation of DMCA from the acquittal in the Sklyarov / Elcomsoft prosecution?
Before you write this off as sarcastic, realize that every major IP corporation at some point or another has knowingly and willfully infringed on other individuals' IP rights. Many of those same CEOs are now trying to restrict legal practices that pale in comparison to the IP "theft" they themselves committed. Several companies "borrowed" IP and resources from the Universities they attended/professored. Microsoft admits to "dumpster diving". Most of the hobby "garage" inventors aquired their materials/computing resource from behind their employers' backs. Will you be actively and agressively presuing those crimes, the details of which are public knowladge?
Also, will you be willing to investigate Open Source license violations, covert or overt. Will we, the small people at Slashdot be able to count on you to investigate the violations we dig up?
Well, will you?
Alternatively, do you believe it's impossible to control this, ala the prohibition era? Will some change to the cultural and business landscape be necessary to accomodate inevitable copyright infringment in file-sharing?
To what extent do you believe that technology should be used to enforce intellectual property rights?
I'm trying right now to register a *BOUGHT AND PAID FOR* MSDN subscription, thousands of dollars already spent, and I'm quite shocked at how un-helpful MS has been.
The package contains a subscription card with an auth key printed on it, and you're supposed to use an online system to do the registration. Well, apparently, someone else has helped himself to my registration key. So I called Microsoft support. They treated me with a great deal of skepticism, insisting that I snail-mail them my activation card, the BOX TOP with the hologram label, and my invoice from the sale. I realized after mailing that, if it gets lost, intercepted, ignored, or destroyed, then I actually don't have any way to get my money back or to get satisfaction -- since I've already sent all the proof of purchase, together with much more personal information than I would have chosen to provide otherwise.
All this, while someone enjoys *my* subscription without being treated like a thief. I should not be the one suffering consequences.
-fb Everything not expressly forbidden is now mandatory.
Hypothetically, let's assume some one has committed a crime involving the illegal aquisition or distribution of some object under copyright, how then do you determine the damage caused by these actions? Perhaps the most common IP infringement is the trading of music files through P2P. How do you determine the value of these suppossed damages if there are no logs indicating the number of times a song has been uploaded/downloaded?
It seems to me that it is awfully hard to prove how much an individual deed has hurt the IP owners.
Slackware, what else when it must be secure, stable, and easy?
How can you acuse one of theft if they never intended to buy a file they downloaded for free? If a person downloads a file of which they are completely ambivalent to in terms of buying or downloading how does this become theft?
Say I download a Britney Spears mp3 that I never would have bought regardless of price but because she is the greatest entertainer who has ever walked the earth I downloaded the mp3 just to have a listen and then forgot about it on my harddrive. How does this constitute theft?
Software companies have always factored in their loses with overly inflated numbers of lost sales which include monies from sales they would have never had. Just because so and so downloads a program doesn't mean they would have bought it. When you have programs that are $1000's of dollars then it's obviously prohibative for the average person to buy so they might download it to try it out.
What I'm getting at is how can a company over inflate loses to "piracy" and I use that term loosely and convince you of the same? Who's fooling who?
How is it theft when someone downloads an mp3 that is unattainable by any legal means? If one cannot find the song/cd because it is not longer released or available online or by any other means then how is it theft. Yes it might be copyrighted but if someone wants it and has no other means of which to purchase it then why isn't it legal to download it?
You aren't free to do anything, until you've lost everything.
How does the government justify essentially allowing Software and Media companies to serve as an enforcement arm for IP law? With corporate protection groups like the BSA levying fines against people who seem to have no legal recourse, the RIAA and MPAA leveling lawsuits against people who are unable to financially defense themselves EVEN when they are innocent, do you feel that your purpose as a government agency is somewhat superfluous?
Kintanon
Check out JoshJitsu.info for Brazilian Ji
I would like to ask what would be the thing in IP laws that makes a lot of problems to you or which you consider the most flawed and basically, which parts of the current law you disagree with or would like to change?
If programs would be read like poetry, most programmers would be Vogons.
In order to properly present a case you need to refer to certain evidence such as, in the case of P2P piracy, computer files containing music (MP3s). This evidence, as far as I know, is still required to satisfy rules for the chain of evidence in how it was collected and handled. In several cases reported through the media, the stories have indicated that the RIAA or their agents have collected this evidence directly. Computer files can be easily reproduced or altered.
These files can not be validated since they can be easily forged or altered in their computerized format, and the injured party is actually handling this evidence, so how could this type of evidence past muster ? File names and sizes do not necessarily indicate content, so without the critical evidence of the violation (the actual file), how is it that any of these cases can be fairly brought to trial ? How would the rules for handling this evidence impact the small copyright holders - if I find a potential violation, can I just collect evidence myself and try to admit it in court ?
Thanks for helping to all of get the rules straight so that we can better follow them.
"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech."--Benjamin Franklin
Does elaborate copy-protection actually seem to reduce the occurance of unauthorized copying? In the first era of copy-protection, people would actually choose unauthorized copies even when they might have bought the legitimate versions to avoid the copy-protection hassles. Does this still apply? I'd bet there are many people who are running 'Corporate' Windows XP releases because they don't want to futz with activation, even if they would have bought the retail version.
It's just like a fascist dictatorship, without the punctual rail service!
I find it very interesting that the DoJ has a special division solely dedicated to protecting the rights of corporations from individuals -- and that the charges are almost always criminal, the individuals are threatened with imprisonment. An individual steals a few tens of thousands of dollars of "intellectual property" and they are threatened with prison terms of 20 years or more.
Yet the division solely dedicated to protecting the rights of individuals from corporations (the FTC), the charges are almost always civil, and the companies almost never admit to any wrongdoing -- they just "settle" without any real consequences, even if they KILL PEOPLE. These corporations price fix, defraud the public, ripoff consumers of BILLIONS of dollars, and commit murder. Yet the individuals responsible for these crimes against the public never face any real threat of fine or prison.
Does this seem moral or ethical to you?
If a person owns a vinyl record, would downloading (via peer-to-peer filesharing networks) the exact same recording and performance in a digital format be considered "fair use" or would it, instead, be a violation of copyright laws?
And that's the price of representative democracy; however, the recent war over intellectual property shows an important crux point in our current government/governed relationship. The RIAA and MPAA are organizations of intellectual property holders that are using their influence to force out new technologies. In this way, they are acting much like a trust would act. After the recent anti-trust action against Micrsoft, I wonder when action hasn't at least beent tried against these industries. The music industry has already been found guilty of price fixing. Does the DOJ or any other organization have plans to take the MPAA or RIAA to court for their blatant violations of US antitrust law?
Thanks,
James Hare
How does your organization decide what cases to prosecute?
For example:
A private citizen reports to the DoJ that a poem that they wrote is displayed on a web site without permission.
Walt Disney reports to the DoJ that the another web site is displaying images of Mickey Mouse without permission.
If you only have the manpower to take one of the two cases, do you prosecute the poem copyright infringement on the grounds that the individual is unlikely to have the funds to hire attorneys for a civil prosecution? Or do you prosecute Disney's alleged infringement case and, if so, why?
Can you please give a description of the word "piracy"?
In Canada, the copyright board is conducting a review for the addition of DMCA-like clauses to copyright law. The initial stage was a request from the public for papers on the implications of this (as it affects the public at large.)
In the second stage, public meetings were held, and in their notes available before the meetings, they commented about the common (in the submitted papers) misuse of the terms "piracy" and "copyright infringement." Specifically, they spelled out that "copyright infringement" meant someone making unlawful copies, and "piracy" meant someone making unlawful copies for the express motive of selling the copies for profit.
The common use of the word "piracy" by the media lobby groups (and the usage by in the blurb preceeding this interview) implies that this distinction has been lost in the US.
Do you believe that people doing casual copying/file sharing, and large-scale illegal businesses who deliberately break the law for profit should be painted with the same brush?
How much does this actually happen? Are there any figures tracing this kind of criminal re-investment?
Paul.
You are lost in a twisty maze of little standards, all different.
In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain
(emphasis mine).Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since
If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?
I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.
Thank you.
-jdm
Not that anyone would call this posting on
If, during the course of raiding this file site and downloading potential evidence of infringment, the RIAA or their assigns commits an act of downloading and storing the copyrighted material of a private individual or company, are they not committing an act of infringement ? Would they not be liable for the same penalties that a private citizen (~voter) would face for committing the same act ? Would it matter who owns the material - the user being raided or another 3rd party ? Assuming that the RIAA is held to the same or similar standards, do you as a lawyer and officer of the court have an obligation to report the incident ?
Is there a sort of double standard applied here ?
"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech."--Benjamin Franklin
For the entire history of the United States, it has been considered vital to maintain public libraries where everyone has free or nearly free access to books, journals, newspapers, and more recently, music and movies. With the exception of academic journals, publishers do not seem to have the right to extract fees from libraries beyond the initial cost of the book or CD or DVD, even though every person who goes into a library and reads or listens or watches represents, to the publisher, lost revenue.
Where, exactly, is the dividing line between an activity that is lionized as necessary to a healthy society (maintaining a good public library system) and an activity that is demonized as theft (maintaining a peer-to-peer file sharing system)? Isn't the end result largely the same -- the free dissemination of information to those unable or unwilling to pay for it? Should I not lend books and CDs to my friends? If I lend a CD to a friend, I understand that he is probably not allowed to rip MP3s from it, but am I still allowed to listen to the MP3s that I ripped from it?
It seems to me that there is really no effort being made at maintaining a proper balance between the rights of copyright holders, and the information needs of society. Unfortunately, this argument is being made over music where the downloaders are not perceived as having a real need -- but won't the legal precedents being set for music sharing apply to book and article sharing? Might not the type of requests made by the RIAA for names for file sharers be used to intimidate people distributing important political information (such as against whistleblowers, or people speaking out against the government?)
Still on the home front, do you have discussions with your teenage kids about software piracy, and if so, do they agree with you?
flossie
Write now. Defend liberty
Who should I call at your office when someone pirates my GPL-licensed software by using it in his product but not distributing the source code?
As more material is migrated from analog sources to digital formats, and as new material is created only as a digital entity, how do you see our history and knowledge being protected in a format that is both fair to the copyright holders and useful to the consumers? How will it remain useable in the future?
My concern here is that the current push to require DRM support in hardware seems to be focused on securing the right of profitability for the copyright holder of a given work. What legal protection does an author have to ensure that this work also becomes accessible when that copyright expires?
Correct me if I'm mistaken, but under current US law (DMCA), is it not illegal to remove the content from a DRM container, even if it is simply to transfer it to a different DRM container? If this is true, then archiving an existing work from one media to another becomes impossible. That, in turn, implies that any digital work which falls out of publication will be lost when existing copies become damaged, or are made obsolete. Are there any provisions for a legal way to transfer DRM-protected works to a non-DRM (or "empty password" accessible DRM) container once they enter public domain?
My question concerning Federal enforcement of IP (basically digital copyright infringement in this context) is this: Does the CCIPS have a mandate to enforce all copyright infringement allegations, be they by personal copyright holders or by major corporate entitites? As a followup, does the CCIPS do so, or is more attention paid to the complaints of corporate entities as a matter of course?
OK, the question I'd like answered is ' where does your remit stop? ' usa only? internationally? or where? , and how do you define where a server/client is. (very simplistically) in the E.U. when we enter into a contract we can choose which (european) states' law should apply to a contract. how would this affect your work?
Several, perhaps many, of the technologies in use and being developed by copyright holders have no impact on the ability to copy content, instead they controll post-acquisition use of legitimately acquired copies. A primary example is the Content Control System used in DVDs, which plays no role in the prevention of replication (you can copy the "encoded" dvd stream without paying any attention to the CCS encoding and then use the illegitimate copy equally with the original, hence it is not a copy control) but does encumber the usage of the original, restricting its use to "approved" players and platforms.
These technologies, which constrain the means used to access the legitimately acquired content, seem to assert and constitute a new "accessright" that copyright holders are asserting (post-distribution) over their customers. In the book-on-paper sense, this is equavilant to selling books that can only be read under "specially crafted red lights" and then perssuring lamp manufacturers and the government to prevent persons from selling "common red lights".
Further, "anti priracy" legislation, such as the DMCA is being drafted and enforced in such a way as to presume the validity of this new "accessright" and punish persons and entities that are preceived to infringe same.
What grounds exist to support the copyright holders assertion of their right to control how a legitimately produced and purchased copy is subsiquently accessed by an individual? Is this different than the existing constraints on commercial use? (e.g. videos have been labeled as "not for comercial performance" etc as a matter of accepted practice and constraint for years.)
The technologies like CCS are, to date, incapable of understanding the different types of use, what precident allows the copyright holder to presume control of the means of use (access), apparently on the grounds of "having provided plenty of means for non-infringing use"?
At what point, if any, is the government planning to protect individual accessright and/or limit this form prior restraint?
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
Do you believe that existing copyright laws, such as the Digital Millenium Copyright Act, are flawed? If so, have you ever had qualms about enforcing them? Would you ever refuse to enforce a flawed IP law on moral grounds?
Okay, could you guys give some illustrations regarding a hypothetical situation to clarify a few things?
Let's say a person in a country outside the US with, let us say, a fifty year copyright law for all kinds of media including audio and video is using P2P. That person doesn't have any way of knowing the location of the other people connecting to his P2P application, and he is freely sharing thousands of files that would be covered by copyright within the US, but are not in his country because they are all copyrighted before 1953 and have therefore entered the public domain in his country. Some of those files are being downloaded to the US where they would still be under copyright according to that country's (the USA) laws.
The question is whether this would be considered infringement by the DOJ. And if it would, then who is doing the infringing? The server only, the dowloader only or both?
Now if the answer is that the server is considered to be infringing copyright, then why are his ISP's servers exempt?
To summarize, how can you draw the line on common carrier status in an international P2P situation where there are differences in laws.
How to do you view IP violations of commercial companies who are abusing the GPL and other Open Source licenses (eg. bundling binary only software that incorporates Open Source in violation of the license)? Would these be investigated to the same extend as violations of similar scope that involved proprietary code?
I'm asking this because Federal prosecutions often have monetary thresholds attached to them, but this is hard to define in the case of Open Source...
Thx.
Chris.
-- I don't have a cool sig.
It is with the advent of the Internet that work which is in the public domain can now be made widely available. Despite the (IMHO) excessively long copyright terms, much classical literature and music is in the public domain, and this is added to every year.
Do you see safeguarding the public domain as part of your role?
Dunstan
The last scintilla of doubt just rode out of town