 I suggested in the preceding segment of this lecture that many people believe that retribution and perhaps deterrence are inappropriate roles for private copyright infringement suits. Such things, it is commonly said, should be left to the criminal law. Why? In part because the government, representing the people as a whole, not individual parties, is the right party to identify behavior worthy of punishment and to impose such punishments. A more subtle explanation, sometimes offered, is that enforcement of criminal law, unlike enforcement of civil law, is controlled by prosecutors who can and do exercise discretion in selecting, from among the surplus of potentially punishable actions, those that truly merit prosecution. Arguably, in short, there's an important role for criminal sanctions in the law of copyright. For better or worse, until recently, the role the criminal law actually played was modest. Although the United States first adopted criminal copyright penalties in 1897, until the late 20th century, they were rarely applicable to instances of copyright infringement and even more rarely enforced. In the last 15 years, the tide has turned. Congress, repeatedly, has both expanded the set of activities that are subject to criminal penalties and increased the magnitude of those penalties. And prosecutions, relying on the strengthened rules, have been increasing. Here are a few manifestations of this trend. In 1994, David Lamakia, then an MIT graduate student, shown here with his lawyer, set up an electronic bulletin board and encouraged users to upload to it copies of popular commercial software programs, which other users could then download to their own computers. At the time, section 506a of the copyright statute was, in the court's judgment, the only applicable criminal provision, and it required the government to prove that a defendant acted, quote, willfully and for the purpose of commercial advantage or private financial gain. Close quote. Because Lamakia had not sought to profit in any way from his actions, he escaped liability. In response, Congress adopted the so-called No Electronic Theft Act, which closed what it saw as a loophole by adding, as an additional possible basis of liability, that the defendant made multiple copies of copyrighted works worth more than $2,500. The relevant provision has since been amended to make it even easier for the government. The current version of section 506a allows conviction upon a showing that the defendant reproduced or distributed during any 180-day period one or more copies or phono records of one or more copyrighted works, which have a total retail value of more than $1,000. These statutory adjustments have since enabled the government to secure guilty pleas from defendants who engaged in conduct similar to Lamakia's. It should be emphasized that the pertinent criminal penalties are not trivial. In addition to fines, defendants convicted under 506a are potentially subject to substantial terms of imprisonment. Back to our list. As you know from the previous lecture, in 1998, Congress adopted the Digital Millennium Copyright Act, which, among other things, added to the copyright statute, section 1201, which imposes serious criminal sanctions on persons who circumvent technological protection measures or traffic in technology designed for such circumvention. In 2004, Congress adopted the Anti-Counterfeiting Amendments Act, which criminalized trafficking in false labels on copyrighted works. The following year, it added the Family Entertainment and Copyright Act, which penalized the recording of movies in theaters. Finally, in 2008, Congress adopted the Prioritizing Resources and Organization for Intellectual Property Act, the PRO-IP Act for short, which converted to felonies, most copyright-related offenses that previously had been misdemeanors, and increased the resources of the Justice Department for pursuing IP-related crimes. Since then, the United States has sought during trade negotiations to persuade other nations to increase the levels of criminal copyright enforcement in their own jurisdictions. The most important such initiative to date is the Anti-Counterfeiting Trade Agreement, in whose negotiation the United States was a major participant. As you can see, Article 23 of ACTA requires member countries, among other things, to quote, provide for criminal procedures and penalties to be applied, at least in cases of willful copyright or related rights piracy, on a commercial scale. Note how the next clause in the provision attempts to grapple with the same issues addressed in the No Electronic Theft Act, quote, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage. As you know, from lecture number one, ACTA has not yet adjourned into force and may never do so. But if it does, it will extend the U.S. trend toward increasingly expansive criminal copyright liability to other member countries. These legislative initiatives have been accompanied by an increase in the frequency of prosecution, both in the U.S. and in other countries. Among the most high-profile cases was the successful prosecution in Sweden of the four people who set up and ran the file-sharing site Pirate Bay, although the Swedish authorities seemed to have had trouble enforcing the relatively modest prison terms and fines imposed on those four defendants. Even more notorious are the ongoing efforts of the U.S. prosecutors to extradite and prosecute Kim Dotcom, the flamboyant creator of the New Zealand-based site Mega Upload. Before it was shut down, Mega Upload was definitely a for-profit enterprise. Between 2005 and 2012, according to the indictment in the case, Mega Upload earned more than $150 million in paid subscriptions and more than $25 million in advertising fees. In 2010 alone, Mr. Dotcom himself earned more than $42 million. Not all of these prosecutions have resulted in convictions. For example, Samu Kaneko, the Japanese developer of the Winnie file-sharing system, was ultimately acquitted on the ground that the system, although most often used for illegal purposes, was capable of substantial non-infringing uses. Note the echo of the Betamax-Kasnu defense here. But in most of these cases, the government has ultimately prevailed. One of the most recent prosecutions came painfully close to home. Aaron Schwartz was a brilliant young programmer and internet activist. Among many other things, he helped found the social news site Reddit and helped Larry Lessig establish Creative Commons, about which you learned in lecture number six. Schwartz believed deeply that information of all sorts should be widely accessible and that belief proved his undoing. In 2011, while he was a fellow at Harvard's Safra Center, Schwartz surreptitiously downloaded a large number of journal articles from the website of JSTOR, a massive non-profit repository of such articles, to a laptop computer that he had placed in a closet at the Massachusetts Institute of Technology. Most likely, Schwartz intended to make the articles available to the public at large, but he never did so. His actions were detected and he was arrested. He subsequently returned to JSTOR all of the data he had downloaded. JSTOR itself, the ostensible victim of Schwartz's misconduct, released a statement indicating that it would not bring a civil copyright infringement suit against him and did not support a criminal prosecution. Nevertheless, the United States attorney in Boston pressed forward with a prosecution. Schwartz was indicted, not for violating Section 506A, but for, quote, wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer, close quote. In a press release accompanying the indictment, the U.S. attorney announced that, quote, if convicted on these charges, Schwartz faces up to 35 years in prison to be followed by three years of supervised release, restitution, forfeiture, and a fine of up to $1 million. Schwartz's lawyer sought to negotiate a plea bargain. The prosecutors reportedly were willing to accept a deal under which Schwartz would serve only six months in jail, but no less. The lawyers failed to come to terms, a trial loomed. In January of this year, at the age of 26, Schwartz committed suicide. Several forces and circumstances undoubtedly contributed to his decision to end his life, but one of them undoubtedly was anxiety caused by the ongoing prosecution and the prospect of a trial and likely conviction and imprisonment. This suicide could and should have been avoided. To be sure, Schwartz most likely had committed a crime. Owen Kerr, a specialist in this field, may well have been right when he wrote, all of the charges against Schwartz were based on an established case law. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged, close quote. But one of the crucial responsibilities of a prosecutor is to decide not just when successful criminal prosecution is possible, but when it is appropriate. Prosecutors, as we've seen, have discretion not to bring charges at all, to bring lesser charges than they might, or to accept lenient plea bargains. This is just the sort of case in which the exercise of such discretion is warranted, and demanded. Schwartz's motives were altruistic, not mercenary. He had no interest in making money. His goal was to make scholarship more widely available. The contrast between his motives and those of all the other defendants I can vest a few minutes ago is stark. JSTOR, the victim of his unlawful behavior, acknowledged that JSTOR had not been harmed and sought no civil remedy. Now, to repeat, Schwartz was certainly not blameless. Arguably, his actions were misguided. A colorful argument could be made that the uncontrolled dissemination of scholarly articles that he sought to accomplish would have seriously disrupted the business of academic publishing, and thus threatened several of the interests that this course has sought to highlight. A better, more responsible way of making scholarship more widely available would have been either to seek reform of the copyright statute or the rules that govern governmentally funded research, or, as my colleague Stuart Schieber has done, to persuade professors or their universities to insist that academic articles be posted on publicly available websites. In short, the methods that Schwartz chose to pursue his vision may well have been wrong. There's a big difference between misguided idealism and the sort of self-serving piracy at which the criminal statutes are primarily aimed. Perhaps some sort of criminal penalty was warranted in this case. Perhaps a deferred prosecution agreement, which would have been effective in preventing Schwartz from engaging in similar conduct in the future. Perhaps, but certainly not six months in jail. In short, the prosecutors in this case failed to exercise their power wisely. I know and respect one of those prosecutors. He's not a cruel person, but he and his colleagues acted irresponsibly, and the result was tragedy. From that tragedy, at least two lessons can be drawn. First, criminal sanctions are both formidable and dangerous. They have important social functions, but their power makes them risky. The hazard that they will be imposed in inappropriate circumstances is exacerbated by the large and increasing diversity of the sets of circumstances and the kinds of technologies implicated by copyright law and the kinds of activities that may constitute copyright infringement. It's impossible for legislators to anticipate all of those circumstances and to differentiate them on the basis of the severity of the harms they threaten, and consequently the severity of the sanctions they merit. It's thus imperative that the people who control the machinery of the criminal law exercise their power sensitively and wisely. The second broader point is that the copyright system as a whole is an extraordinarily complex and powerful machine. As I hope you now see, it affects myriad dimensions of the global economy and culture. It seeks simultaneously to advance many different social goals and to protect many different rights and freedoms, some of which are intention. Effectively operating a machine this complex and important requires care and again wisdom. When tuned intelligently and deployed thoughtfully copyright has enormous and growing benefits. If it is out of tune or deployed thoughtlessly it can cause great harm. My ambition in this lecture series has been to provide you the information and analytical tools you need not just to understand the copyright system as it currently exists but to participate in the ongoing project of adapting that machine to deal responsibly with changing social and cultural circumstances. I hope you have found the lectures helpful in this regard. Thank you for your patience and attention.