 Let's talk a little bit about wares trading. For those of you who are in the last panel, you have up to here, Susan Brenner, talk a little bit about cyber crimes and some of the conceptual issues they raise. We're not going to drill more specifically into one particular type of issue, wares trading, and look a little more detail about how the law applies to that. My name is Eric Goldman. I'm a law professor at Marquette University in Milwaukee, Wisconsin. And I got turned on to wares trading and taking a look at a law that Congress passed back in 1997 called the No Electronic Theft Act. And that law, I think, really was targeted primarily to cover things like wares trading. We're going to take a look at whether it did a successful job in just a little bit. In the course of doing my research, I prepared a couple of different papers, one a rather theoretical paper that would bore most of you, and another more descriptive paper that talked specifically about the mechanics of the law and went into some detail on the prosecutions. That should be on the CD that I think is going to come out sometime before the end of this conference. Is that about right? But if you're interested and want to make sure you get it, you can either download it off my personal webpage or you can email me or you can give me your card or your email address and I'll make sure you get it. I would particularly invite any comments that some of you might have. I'm guessing some of you know personally some of the people have been prosecuted and I always am interested in understanding a little bit more about the factual background behind some of these cases. So if you're interested, please go ahead, give me a card or your email address and I'll make sure that you get the more comprehensive article. We're going to talk about four things today. We're going to spend a few moments defining wearer's trading. I don't think we're going to need a lot of time on that given this audience. We'll talk about some of the applicable criminal laws that might cover wearer's trading. I'll give you a few words about some of the prosecutions that have occurred and finally I'll talk about some policy concerns I have about the law. But to give you the short answer first, I'm going to give you the punchline which is that I think Congress did a pretty good job accomplishing its goal of criminalizing wearer's trading back in 1997 and this talk will tell you why. And for those of you who've wondered, so what? My take and I'll explain why at the end of the talk is that I think it's only more likely that wearer's traders are going to jail in the future. I don't think that there's going to be a change in the attitudes or the application of the law. Let's talk a little bit about defining our terms. So obviously when we talk about wearer's trading, we're distinguishing it from commercial piracy. When I refer to wearer's trading, I'm talking about the non-profit dissemination of copyrighted works almost invariably software, but it need not be limited to that. But motivated by either an ideological bent, a desire to see something freed, or a navigation, it's a hobby of some sort to disseminate or collect these copyrighted works. This is to be distinguished of course from commercial piracy where the point of commercial piracy is to make money. So the idea is someone will take a copyrighted work, slap it on CD-ROM, and sell it. And that of course is not the wearer's way. The wearer's way is to do this thing not for profit based on some other motivation. I think the more interesting question is how do we, how are wearer's traders categorized or distinguished? And I posit to you that there are four different types of wearer's traders that get lumped somewhat imprecisely into a single monolithic group. And I would break them down into four different buckets. I would distinguish the first bucket as the wearer's distribution groups. These are the large scale organizations that have their stock and trade the rapid dissemination of hard to crack copyrighted works. I would distinguish those from the wearer's collectors. These are people who do about the same thing, but they tend to be more like lone wolves. Either they just don't want to participate in a structured organization or they're trying to gain entrance into it. But either way they tend to operate a little more independently. The third category of wearer's traders are people I call wearer's downloaders. These people are not traders per se, they're usually looking for something for free. They want to get the wearers for usually the functional benefit, not because they have some more ideological bent. And the fourth category of wearer's trading is what I call the abandoned wear enthusiasts. By abandoned wear I'm talking about copyrighted works where the copyright owner has declared that they're no longer commercially vending that particular item. A classic example of this of course is games. Many games manufacturers will stop manufacturing the games, stop commercializing them, and the abandoned wear enthusiasts see themselves as the archivists or historians to preserve the availability of that game for the future because the copyright owner is no longer doing so. I think a lot of abandoned wear enthusiasts would distinguish themselves from wearer's traders, but from a legal standpoint I have a tough time doing so. Perhaps the only place where we can distinguish them is under the doctrine of fair use, which I'll talk about in a bit. And even then I'm not sure that they're fairly distinguished and that's why I include them in the group of wearer's traders. What I'd like to do next is talk a little bit about the basics of criminal copyright infringement. My primary goal here is to disabuse the myths because there are many in our environment. What I'd like to do first is just define the high level structure of criminal copyright infringement. Someone engages in criminal copyright infringement when they willfully infringe for either commercial advantage or private financial gain or by reproducing or distributing in any 188 period works with a total retail value of over $1,000. Anyone who meets these standards is eligible for prosecution. Punishment can include up to five years in prison and up to a $250,000 fine. What I'd like to do is go back through that high level definition of criminal copyright infringement and lay out the elements of a prosecution. In order for a prosecutor to successfully win a case against a wearer's trader, they need to establish the following four elements. The first element is that they need to prove that a valid copyright exists. In the wearer's environment, this is almost impossible not to be the case. Most wearer's traders don't trade public domain works or they don't trade things that have been freely disseminated. Usually the whole point is to disseminate something that is under the rubric of copyright protection. This element is usually very easy to meet. The second element of a wearer's trader prosecution is infringement. My shorthand for identifying when a potential act might be infringing or the act that might be potentially infringing is I look for copies. If I can find a copy, I can find the basis on which someone can claim copyright infringement. For example, if I upload a file, that is a copy. I make a copy of what's on my hard drive to some central server. Certainly if I download a file, I make a copy from a central server to my hard drive. And if I distribute a file, say by email or by Usenet or by IRC, usually I'm going to end up through that process making multiple copies. There will be a copy still on my hard drive and then there will be other copies to all the people who have received this file through the process of distribution. You can imagine, of course, that establishing the requisite actions for a copyright infringement in the wearer's trading context is pretty easy to do. Usually wearer's traders in the process of doing their thing make lots of copies. The more interesting aspect of establishing infringement is that the prosecutors have to actually connect those copies to a particular individual. This is not always as easy as it might sound. How would one go about establishing that a particular individual made a particular set of copies on a central server? What would you guys do? One of the ways for the prosecutor to try and establish that a particular infringing wearer's was attributable to a particular individual is that the individual will claim credit. Now remember, the prosecutor will have to prove beyond a reasonable doubt that that particular individual did that particular crack and made that particular claim. It may not be enough merely that it was shown because someone could be attributing that falsely. Any other thoughts about what the prosecutors have to do here in order to overcome the evidentiary challenges? Let's think about some of the things I would try and do if I were a prosecutor. One is I would try and establish a connection between a username and passphrase and the particular action that I'm trying to claim was infringing, right? You could see how if you could establish in the logs this username and passphrase was associated with these set of actions you could try and establish that. Now of course a wearer's trigger might respond someone stole my username and passphrase. And once again you have an issue about whether beyond a reasonable doubt the prosecutors have established that the particular action was taken by the particular individual. Another way that the prosecutors might be able to establish the evidence is by doing some kind of association between IP address and activity. They can log the activity and they can say this activity was conducted by this IP address and then all they have to do is try and associate that particular individual with that particular IP address. And you can see once again there's going to be some holes in that. It's not necessarily airtight. So what do prosecutors do? Well there's two ways around this. Way number one is that if there's someone participating in a group activity they get one of those members of the group to turn states' evidence. In other words if one person says I will tell you everything I know usually that opens up the floodgates of information about everyone else in the group. The other way the prosecutors have been attacking this is by doing the surreptitious servers. They will set up their own servers try and get the groups to use those servers and then they can actually tie the activity back to the individual a little bit more easily. But the evidentiary challenges are pretty significant and this is I think one of the big barriers the prosecutors are encountering in actually getting the prosecutions that they would like to get. Now some of the defenses that are available for infringement is one something that's called the first sale defense. I'm sure some of you have heard about this. This is the doctrine that allows me when I buy a book in a bookstore to be able to do whatever I want with that book in the future. I can give it to a friend. I can loan it to a friend. I can tear it up and destroy it. I can distribute that book without engaging in further infringement based on the first sale doctrine. And a lot of people have I think a expansive view about how the first sale doctrine should apply on the internet but I don't think the law gets them there. I think you would like to say if I get an electronic file that file is now somehow protected by the first sale defense and I could further distribute it without any incursion in the copyright owner's rights. And the short answer to that is no and I can explain that in more detail why that won't work but I think that the first sale defense which is a very common one in physical space prosecutions is actually not particularly availing in the internet context. The much more availing defense in the prosecutions is the fair use defense. I'm sure many of you have heard about the fair use defense. Let me just talk through it a little bit. It is a multi-factor defense that has usually the following four factors, the nature of the use of the copyrighted work, the nature of the copyrighted work, the amount of the copyrighted work taken and the effect of the activity on the market for the copyrighted work. And fair use I portrayed as an equitable defense. It is something where the courts use their equitable powers to reach a result that they think is more just. The problem with that, of course, is that it leads it up to the discretion of the judge or the jury what they think is the right result. And usually when they figure it out what they think the results should be, fair use factors then follow to support that analysis. So it is a little bit hard to predict how fair use will apply to where it's trading because I think that we only can speculate about what the attitudes of a judge or jury will be towards a particular conduct. Having said that, I can give you a little bit of guidelines on some of the factors. Let's talk about each of them in turn. First of all, the nature of the use. The copyright statute references two ends of a spectrum. Commercial use and educational use. Commercial use is less protected and educational use is more protected. Where it's trading obviously doesn't really fit into either. By definition, it's not commercial use the way we think of commercial piracy, but I don't think it's fair to characterize it as educational use. I'm sure some of you would take an opposite view, but I don't think that's what we mean if we think about the kind of things that take place in the university. Where it's trading doesn't quite fit that. So what is it? Well, we have some precedent here in the civil context that isn't particularly favorable. So, for example, take the Napster Court, taking a look at peer-to-peer file sharing. And the Napster Court concluded that peer-to-peer file sharing occurring in the home for personal use could be considered, quote, commercial use for this factor because it was repeated and exploitative copying. Now, I have big issues with many aspects of the Napster opinion, but I think it's illustrative of what I described as that equitable approach to the defense. If, in fact, there's a goal to be equitable, courts will interpret these factors to support their view. And in that particular case, the Napster Court took the view that peer-to-peer file sharing was not eligible for fair use and it found a way to make the factor support that. If peer-to-peer file sharing is considered, quote, commercial use under the fair use factor, I think we would all agree that where it's trading probably fits the same model. For a moment, the amount taken by where it's trading is almost always all, right? It almost always that where it takes 100% of the particular copyrighted work, that factor will weigh against fair use. And the final factor that I think really is often the big lever in fair use is the effect on the market. And I would think that most of us have a visceral reaction when we hear about the effect of where it's trading on the market for copyrighted works. Most of us viscerally would say there is no effect. We would never buy these particular copyrighted works if we have to pay money for them. And therefore, there's no way that what we're doing impacts the market. And I think at some level that's true. I think we would all agree that a big chunk of where it's trading fits that definition. But I don't think all of it does for two reasons. First of all, you do have these people, these where it's downloaders, as I described them, who do in fact download for the actual functional benefit of the particular copyrighted work. And those people might very well be the kind of things that we would look at as lost sales. Therefore, those people would in fact have a detrimental effect on the market. The other problem that I think comes up in this factor is there is some evidence of uncertain credibility, but there is some evidence that many of the commercial pirates, particularly in Asia, will use the where's trading sites as a source for new product for them to put into the marketplace. Now, I don't know if I'm fully sold that the evidence is convincing, but I will tell you that one could imagine a judge or a jury being persuaded that the attributes of where's trading leads to a detrimental effect on the marketplace for those particular works because of this derivative chain of events. If you don't mind, let me hold all the questions because I know you guys have a ton, and I'm going to try and get through the basics, and then I'm going to take them all. I think that there's plenty of grounds for debate about the fair use factors. Having said that, I think that in looking at the way that the courts have at least to date analyzed things like peer-to-peer file sharing, I don't get a whole lot of comfort that a court faced with an equitable approach to the fair use factors is going to be all that kind to where's trading. I don't think that judges and juries are going to be all that sympathetic, and as a result, I think that the chances of the fair use defense applying to where's trading is actually rather low. The third element that a prosecutor has to establish in order to win a where's trading prosecution is to establish that the infringement was willful. The word willful is an awful word. It's a word that if I could, I would banish from the legal dictionary, but I can't, and so we work with it the way it is. There is a split in views on what it means, and I'm going to take the position for purposes of this talk that the majority of you will be the predominant one, that the definition of willfulness will mean that in order for the prosecutors to win, they have to show that where's trading was a voluntary intentional violation of a known legal duty. The practical consequences of the majority definition is that it creates three new defenses for where's traders. Defense number one is that where's traders could say, I had a good faith belief that my activity was not infringing. Of course, if it was correct, it's an absolute defense because there's no infringement. But even if it's incorrect, but the belief was good faith, there still could be the possibility of this defense as eliminating that the action was willful. I think this is actually rather unlikely in the where's trading context because this would apply if, for example, there was doubt about whether or not the underlying work was eligible for copyright protection. And generally, I don't think that's the case in the where's trading context. The other place that this would apply is if there was an argument about the first sale defense, and as I indicated earlier, I just don't think there's a whole lot to discuss there. Another defense that comes out from the majority view is a good faith but incorrect belief that the activity was fair use. I think this is a pretty significant defense. While I'm not convinced that where's trading... it should be fair use based on the existing precedent, I do think that it's open for debate. And someone who can claim a good faith belief that they were uncertain about whether or not their activity was protected under the fair use doctrine, even if they're wrong, should still negate the willfulness prong of the prosecution. I think if we get a lot more cases like Napster and Amster, where the court has pretty much shut down the fair use defense without a whole lot of credence, at some point it will be impossible for where's traders to have a good faith belief because the courts have been consistent in their message. I don't think we're there yet today, and as a result I think there's opportunity for a where's trader to try and take advantage of a good faith belief that their activity is fair use, even if it's incorrect. Without that, I wouldn't go too far with that. It has to be good faith, and I think many of us might end up abusing that statement, taking it far too far in terms of how much activity can be considered fair use. Another defense that's created by the majority view is ignorance of the law. And I think this one is generally going to be unavailing to most where's traders. I think most where's traders, at least from what I've seen, generally have a pretty good sense of doing violates the law somewhere. They may not be able to explain the specifics of why that's the case, but I think that generally there's some sense that they know that they are violating some aspect of someone's copyright, and in fact usually I think that's part of the point. So as a result I think that particular defense is not going to be all that strong. The last set of factors that the prosecutor must establish is one of the following. It's an either or here. They must establish either that the infringement was made for commercial advantage or private financial gain, or that it was involved infringement of a quantum that exceeds a certain retail value. Let's talk about each of these. First of all, in order to establish that the infringement was for private financial gain, the prosecutors can take advantage of the definition of financial gain, which basically has been defined to remove any aspect of it being financial. So it's one of these typical lawyer tricks where we define day as night and black as white, and here we define financial gain to include the receipt or expectation of receipt of anything of value, including the receipt of other copyrighted works. And I think we could say with some confidence that back in 1990s at least, there wasn't ethos among where as trader, you got to give to get, right? And this is exactly why Congress redefined this particular term in 1997 to cover that type of mentality. I think that at least some where as traders, if not many where as traders, have moved on from that ethos, have developed a new one that says, I don't really care if you give me anything back. I just am going to give you what I've got without any expectation in return. And if in fact somebody has that belief, they might very well be able to negate this particular problem. I expect that the prosecutors will come back with a counter argument, something to the effect that in order to be a reputable where as trader, you need supply. In order for you to get supply, you have to do something. It's a little give in order to get the supply. And so they're going to try and argue that whatever it is that you're doing to get the supply will meet the definition of financial gain. But those arguments aren't tested yet. I'm not sure where they're going to go. Even if they don't get there under this particular definition, they still can establish that someone engaged in criminal copper infringement by showing that someone has engaged in over $2,500 worth of infringement if they want to establish a felony or only $1,000 of infringement if they want to establish a misdemeanor. Well, how do we measure these numbers? They're not crucial. We could take a position that you should measure based on what the actual wares were sold for, which is usually zero, right? In which case, you would say, I've never engaged in $1,000 worth of infringement because I actually, when I vended my wares, so to speak, got nothing in return. And of course, this is a typical congressional thing to do. This issue was raised to Congress about the definition of retail value and Congress punted. They said, you know what, we're not going to tell you. So we don't really know exactly what the metric's going to be. Having said that, there is the definition of retail value in the sentencing guidelines. These are after someone's been found guilty in order to peg what particular punishment they're eligible for, there's a document called the sentencing guideline. And those sentencing guidelines have a definition of retail value. And they say the definition of retail value is the price at which the infringing works were sold. In other words, for wares, zero, unless it meets one of the reasons why you would shift the default. And those reasons that you shift the default include things like it's an identical copy to the original. Or it's impossible to really establish a proper retail value for the infringing works. In other words, the practical consequence under the sentencing guidelines is you're always going to shift from the default price equals what it was sold for to the manufacturer's list price. So what I think is likely to occur, I think the proper metric based on course persuaded by the sentencing guideline will be the manufacturer's list price. At which point you can see this is an incredibly easy threshold for the prosecutors to clear. It doesn't take many particular items of software, for example, to clear the definition of retail value when you're using manufacturers list price. Let me just summarize briefly about the prosecutorial elements of the criminal copyright infringement with respect to wares. Generally, wares traders engage in the exact type of activity that was designed to be covered by the criminal copyright infringement statute. But the defenses that might come up with the evidentiary proof that a particular set of actions were taken by a particular individual or the defense might be this good faith belief that a particular set of activities were fair use even if it's incorrect. That's the good news. That there might be some arguments however slim they are that wares trading is not criminal copyright infringement. Now here's the follow-up kicker bad news. Which is Congress has added a bunch of new laws in the last decade or so that pretty much cover activities that are implicit in wares trading as a bonus set of coverage of the particular activity. So for example, we have laws against circumventing devices protecting copyrighted works. We have a law that protects against the circumvention. We have a law that protects against trafficking in the circumvention devices. And almost every large wares trading group is going to have somebody at least one person who engages in circumvention. It's impossible to have a major group without doing so. So even if someone were able to avoid the criminal copyright infringement prosecution, they should still get stuck with the circumvention action. We also have laws that protect against hacking in trust paths. As Susan mentioned earlier in the hacking definition, what I mean here is by the unauthorized intrusion into private spaces. And some wares traders will do just that in order to gain sources of wares. For example, you can imagine that one of the members of the group has access to a private network. And that member of the group says, I'm going to let other people get into the network in order to download wares. Another way that this could come up is when wares trading groups use third party networks in order to engage in their activities. And one can make an argument under the law that using that network constitutes unauthorized access that causes damage. The damage being the use of the network or the security or remedial measures that are taken in order to stop it. Some wares trading groups will set up a quid pro quo that will constitute something like theft. They will say, I'll give you access to our database of wares if you give us a private network, right? That's exactly what happened in the Pirates With Attitude group, for example. They said to the Intel employees who are part of the group, you can have access to the database if you give me some Intel boxes. Another criminal law that can imply is trade secret misappropriation. So this can come up, for example, when someone gets a pre-release version of a software, if in fact the pre-release version can be characterized as more secret than the misappropriation that can meet criminal standards. And finally, there's a lesser known part of the law called copyright management information integrity. Basically it says that if someone puts their name or other identifying work on a copyrighted work, that can't be removed. And I don't think many wares traders will remove someone's copyright management information that's identifying information, but it is often where somebody will add their own. And another prong of the law says you can't add your own identifying information in order to as part of engaging in infringing conduct. My point behind laying out these other laws is to tell you that there's a pretty good set of backstop here for the Department of Justice. If they are uncertain about whether they're going to win on the criminal copyright infringement statute, they can do what's called charge stacking. They can basically toss all of these laws into the same prosecution and hope that one of them sticks. Meanwhile, chances are that's going to be a rather uncomfortable experience for the defendant. Let me talk briefly about the prosecutions that have taken place. I would define the defendants into three different groups. First of all, there's the major wares distribution groups. People like fast lane, pirates with attitude, drink or die, rogue warriors. These groups have all been busted under the criminal copyright infringement statute. There have also been individual traders. People that I would characterize more as these wares collectors, these people who I think were engaged in more individualistic activity. People like Levy, Thornton, Baltatat and Fitzgerald. I think Fitzgerald is a particularly interesting prosecution. Did anyone know him? William Fitzgerald? Did you guys know him? He was prosecuted just early this year and the prosecutors alleged that he had $70,000 worth of wares on his network. He was running three boxes out of his home and he didn't appear to be working with anyone else. I would have thought that normally that's the kind of thing that prosecutors would kind of have moved off of. They would be looking for bigger fish like these distribution groups. His prosecution stands out because they still seem to have at least some appetite for going after these wares collector types. The other three, Levy, Thornton and Baltatat, were all relatively early prosecutions all of a few years ago as opposed to this year. But Fitzgerald suggests that maybe they are still looking to pick up wares collectors where they can. And then the third class of defendants are not wares traders the way that I normally would define them, but I think they're close enough to be referenceable. These are people who do pre-release versions of movies. So Spadafore released one of the Star Wars movies before it was actually in the theaters and Gazales just recently had released a pre-release version of the movie The Hulk. And the DOJ seems to be going after all three classes. Not obviously a great deal. We have nine different groups that have been pursued. On the other hand, they do seem to be spreading their resources to go after all three. I think the more telling stats is that the Department of Justice has a 100% conviction rate so far. Every publicized prosecution I found, they have one. This is actually not unusual. The Department of Justice actually has a very high batting average generally, but they're even above their average here so far. And part of the reason why they have such a high conviction rate is that almost all defendants plead guilty out of about the 60 or so prosecutions that have led to a judgment. Only two of those went through a trial. Both of those people lost a trial, but every other individual who has been prosecuted and has reached a judgment has pled guilty. And this is actually I think rather typical as well in this environment. Usually when the Department of Justice has decided to make a prosecution, they've tried to do their homework as best they can. And because of their stress rate and prosecutions, usually the defendants will think about alternatives. Other people who have been reached a judgment of some sort, which is about, I said, 60 or so, 19 of them have been sent to jail. The highest jail time that someone has received was 46 months. That was John Sankas for Drink or Die. But the average is about two years of people who have received jail time going to jail. I want to spend just a few more moments talking about some policy concerns about the law. Then I know you guys have questions and we'll dig into them. Obviously, it's very easy to overstate the consequence of where's trading on piracy generally. And the general model under criminal copyright infringement treats every single copy as a lost sale. And we all know that's just wrong. And as a policy from a policy perspective, doing so substantially overcounts the real footprint that particular individuals have on piracy generally. And certainly with respect to where's trading as we discuss, that's definitely the case. Very few of the copies that a particular where's trader might be responsible for really end up constituting lost sales. But perhaps some do and that's why we have some issues. But using this paradigm of counting copies as lost sales definitely undercuts the ability to do smart policy planning. I also think that criminalizing where's trading has what I think may be counterproductive motivational effects. It really sets up or reinforces an us versus them type of mentality. If you're a where's trader chances are you already get off on the thrill of the illicit to some degree. And here the illicit has become that much more harshly penalized which makes it perhaps that much more thrilling. It also disaggregates those people who have run the gauntlet from all the others who choose not to. And it really reinforces there's a separate culture among these people who understand each other and no one else really understands them very well. I think my biggest policy concern about the way the law has been dropped is that it covers not just where's trading but many of us as Americans irrespective of how much where's trading engaged in. Obviously things like peer to peer file sharing could end up being considered criminal copyright infringement. If you look back through the elements remember willful infringement either for private financial gain or over a minimum threshold but the private financial gain aspect and where's trading I'm sorry in file trading could be shown by things like you have to give to get a little bit if your software is set up that way. But even if you don't go that prong and you just look at the retail threshold the retail value threshold is $5 and 56 per day of infringement to be considered a criminal copyright infringer. And I think all of us probably feel uncomfortable with that number right. We all engage in lots of copies of part of living in a modern digital society and to have some of those count towards as $5 and 56 cents a day and you apply the manufacturers list price to those infringements. It's pretty hard for most people in this room not to have cleared that threshold actually that's a very uncomfortable situation for all of us. I want to conclude with a couple of predictions it's always dangerous for law professors to predict. We're not very good even at looking backwards in time let alone looking forwards but let me give you my take on where the law is going. Congress really really wants people to respect the laws that it has written it has a desperate yearning for you to do exactly what it wants and what that means is that from a policy standpoint Congress will put in place a law and then it will look and see if it worked. Now most of us when we do that we say well if it didn't work let's try something different but what Congress says well if it didn't work it's because it wasn't mean enough right so the way we're going with the law is to make laws meaner. And so for example some of you may have seen that earlier in the last month Conyers proposed a bill called ACC OPS that may basically put the paradigm in place uploading a single infringing file willfully constitutes a felony I trust all of us in this room would likely have cleared that standard and this really goes to the point Congress saying I'm not sure if I got where I wanted with the earlier law says well let me make it meaner ultimately if I make it mean enough people will listen to my laws on the other hand in fact I suspect that the most of us can embrace this other counterpoint which is we as Americans at least don't really do a good job of respecting laws that we consider unjust in order for us to buy into a legal scheme we have to comport to some degree or another with our standards of justice and the meaner the law gets the less likely it does so we see there's a coming crisis Congress is making meaner laws we're continuing to reject them as becoming increasingly unjust because Congress is making meaner laws it also wants to see those laws enforced and so what it does is it holds hearings with Department of Justice at the rate of it seems like about once a month nowadays where it calls the Department of Justice and say where's my prosecutions I want to see that you guys have put people in jail they've had several hearings on this specifically to P2P file sharing but needless to say the Department of Justice is a little gun shy about going after peer to peer file shares right there's a lot of targets out there and it starts to bleed the line between going after people that generally other people might feel comfortable distinguishing their behavior and having people feel eternally like oh my god I now might be part of the law I think that's wrong and so the Department of Justice is caught between between they don't really want to go after file shares but Congress is beating on them every single month it seems like show me that you're putting people in jail under very mean laws well look at where's trading what a great compromise for the Department of Justice and Congress the Department of Justice can go and say I'm going to throw some people in jail Congress will say great and meanwhile I think that the average American can make a mental distinction between P2P file sharing and where's trading I cannot do so from a legal standpoint but I think that the average American can and so it offers up the Department of Justice a way to satisfy this demand by their bosses so to speak while not end up spooking the entire country so it is my prediction based on this this pressure of Congress demanding more heads and of of the distaste on the part of Department of Justice to go after the average American that where's traders get caught in the middle and end up being a sacrificial lamb in order to satisfy the competing needs what I'm going to do with that is take some questions yeah question see before I get shut up for that and also say like if I buy a program but it's slightly too old and so I go up and I download a slightly newer version of it in order to work with the system or if I get something that is downgraded because it's a spyware will I get nailed for that a bunch of questions here let me deal with the first one first we got the question where somebody owns a legitimate copy of a copyrighted work on media one and then wants to download a copy of that to replicate it and we all know that that should be not objectionable right however the law has said specifically that is an infringement now whether that will constitute a willful infringement will depend on whether or not for example the majority view of willfulness applies and if that activity could be either fair use or will have a good faith belief even if it's wrong that it's fair use and so you could see some debates about that you have some other versions about software and you are implying that with respect to different versions of software you might get a download a different version from what you've actually legitimately own that one's a little bit less comfortable right if there's actually commercial distinctions between the two different versions chances are taking the other version without paying for it's a little bit more like our standard notions of infringement now whether you're going to get prosecuted for any of these is a much more difficult question the department of justice has a great deal of latitude about what cases to prosecute chances are they're going to be a lot more excited about going out for wearer's traders in general than a particular activity like that however I can't tell you that it doesn't drop out of all of the elements of criminal copyright infringement there will meet all of those elements other questions yeah you let me so I believe that you've made a couple of points but let me deal I think with the kernel of what you are driving at copyright has become a product of special interest and there are some various theories that describe this you can call public choice theory you can talk about rent seeking behavior on the part of copyright owners but we all know the basic model copyright owners get a monopoly it creates monopoly profits it is smart for those copyright owners to reinvest some of those profits right back into congress to preserve or maintain their monopoly is that fair with where you're going now I believe that with respect to criminal copyright infringement criminal copyright infringement has taken on a life of its own that has transcended their typical rent seeking behavior and that has now become personal between congress and the American public and that congress is no longer being pushed hard by the copyright owners to pass these criminal copyright infringements that congress says we put these laws on the books people are not listening to them we're going to make them listen that the sales job that the copyright owners have made over the last decade or 20 years has been effective to create this perpetual motion machine of meaner and more restrictive copyright laws even without copyright owner prodding at this point now having said that you raised an excellent point and I was speaking with some representatives at the EFF about this just yesterday how do we get congress to listen to the average Americans and stop putting in place laws that are so wildly diverged from our beliefs as average Americans and I would like to think that we can come up with some ways and I'm going to see what I can do to try and marshal up some of the energy we might have in this room today to get congress to actually listen to us as average Americans question I'm not sure where you're going with that but I think the question is there are ways for someone who wants to be malicious about using copyright laws to screw other people can actually do so pretty easily it doesn't take a whole lot of work to put your own copyright work into the stream of the internet and then go and make other people's lives very very difficult and we actually have some evidence of that when we look at what I call the crackpots I don't want to name names because I don't want anyone to take it personally but we do run into the crackpots in copyright world where someone does just that and they can go and actually clean up it's actually a business model on the part of some people questions over there I'm sorry I can't hear you okay so it's 6 o'clock in the Apollo room there will be a new session that will discuss some of the issues regarding the RIAA's initiatives how much time do I have or am I going to get the big X what I'm going to do I know you guys have a ton of questions we're going to adjourn those questions and I'll be happy to take as many individual questions as possible thank you very much for your time