Warez Trading and
Criminal Copyright Infringement
Eric
Goldman
Marquette
University Law School
Overview
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Definition of warez trading
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Applicable criminal laws
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Some prosecutions
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Some policy concerns
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The bottom line:
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Warez trading has been criminalized
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More warez traders will be sent to jail
What
is Warez Trading?
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Warez trading vs. commercial piracy
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Different types of warez traders
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Warez distribution groups
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Warez collectors
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Warez downloaders
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Abandonware enthusiasts
Criminal
Copyright Infringement
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Willful copyright infringement committed:
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for commercial advantage or private financial
gain, or
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by reproducing or distributing, in any 180-day
period, works with a total retail value over $1,000
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Punishment can be up to 5 years in prison and
$250,000 fine
Prosecution
Elements
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Valid copyright exists
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Infringement
n
Uploading,
downloading, distribution
n
Evidentiary
challenges
n
First
sale doctrine
n
Fair
use
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Nature of the use
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Nature of the work
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Amount taken
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Effect on the market
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Willfulness
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Minority view: intent to copy
n
Majority view: “voluntary, intentional violation
of a known legal duty”
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Good faith
but incorrect belief of non-infringement
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Good faith
but incorrect belief of fair use
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Ignorance
of the law
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Commercial advantage/financial gain
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Financial gain: “receipt, or expectation of
receipt, of anything of value, including the receipt of other copyrighted
works”
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Retail value
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$2,500 for felony, $1,000 for misdemeanor
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Price of warez v. manufacturer’s list price
Other
Criminal Laws
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Circumvention
n
Circumventing
n
Trafficking
in circumvention devices
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Hacking/Trespass
n
Unauthorized
access to obtain information
n
Unauthorized
access and causing damage
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Theft
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Trade Secret Misappropriation
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Copyright Management Information Integrity
Prosecutions
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Classes of defendants
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Distribution
groups (Fastlane, PWA, DOD, RWZ)
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Individual
traders (Levy, Thornton, Baltutat, Fitzgerald)
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Movie
traders (Spatafore, Gonzalez)
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100% conviction rate (so far)
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Almost all defendants plead guilty
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2
jury trials, both lost
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At least 19 defendants have received jail time
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High:
46 months
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Average:
25 months
Policy
Concerns
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Warez traders’ contribution to piracy is
substantially overstated
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Counting
copies substantially distorts “lost sales”
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Criminalizing warez trading may have
counterproductive motivational effects
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Congress has criminalized many Americans, not
just warez trading
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Is
P2P file sharing for “financial gain”?
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$5.56/day
of infringement
Predictions
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Congress wants people to respect the law
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If
a law doesn’t work, make it meaner
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But
we do not respect unjust laws
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Congress wants more scalps
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The
double-edge sword of busting P2P file sharers
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Meanwhile,
warez traders make great targets
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Congress hates warez traders
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Industry hates warez traders
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The average person can distinguish their conduct from warez
trading
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Net Effect: More warez traders will be jailed