Legislative Efficacy:
No Electronic Theft Act
Eric
Goldman
Marquette
University Law School
The NET Act
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Passed in 1997 in response to LaMacchia case
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Criminalized willful infringement of $1,000
retail value within 180 days
n
Even if no commercial advantage or private
financial gain
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Redefined financial gain to include the receipt
of anything of value
The Act’s Goals
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Plug the “LaMacchia loophole”
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Shut down commercial-scale and self-aggrandizing
pirates
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Curb piracy
n
Especially Internet-mediated software piracy
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Shut down warez traders
Has the Act Succeeded?
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Eight publicized enforcement actions
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7
of 8 involve warez traders
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Government
has won plea bargains or convictions in all cases
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Jail
sentences ranging up to 46 months
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But piracy has not abated
n
IPRC
Study
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Warez
trading sites increased 900% from 1997 to 1999
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80%
have downloaded software without paying, and over 40% have burned CD instead of
buying
Hypotheses about Efficacy
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Inadequate enforcement/penalties
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Ignorance of the law
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Socialization
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Act does not target warez trading well
n
Ego-seeking
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Cyber-Robin Hoods
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Strong social bonds
Other Problems
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No definition of “willfulness”
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Majority
v. minority views
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Is
ignorance of the law or good faith belief of fair use a defense?
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The law may apply to facilitators
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Financial thresholds criminalize too many people
n
You
are a criminal infringer if you willfully infringe $5.56 per day
Conclusion
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The Act closed the LaMacchia loophole
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The individuals prosecuted under the Act comport
with Congress’ intent
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But the law isn’t curbing piracy generally or by
warez traders
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And the social costs from overcriminalization
are not trivial