*183 high-speed chase on the information superhighway: The evolution of criminal
liability for internet piracy Shahram A. Shayesteh [FNa1]

Copyright © 1999 Loyola Law School of Loyola Marymount University; Shahram A. Shayesteh

The Internet is known by many names: the Information Superhighway, the World Wide Web, [FN1] the National Information Infrastructure, [FN2] or simply "the Net." However confusing this terminology may be, most people in modern countries today are very much aware of the Internet and its growing popularity. The Computer Industry Almanac estimates that by the end of 1998, approximately 150 million people worldwide were "surfing" the Internet, up from nearly 40 million in 1995. [FN3] Nowadays, the number of Internet users is growing exponentially, expected to reach an estimated 320 million by 2001 and 720 million by 2006. [FN4]

*184 Such massive growth inevitably breeds some unwanted weeds in the garden. The Internet's sheer size and anonymous nature allow countless Internet users to illegally pirate computer software and distribute it on the Internet without fear of apprehension. [FN5] Due to the ease with which software can be copied and distributed worldwide--virtually instantaneously-- copyright owners have become reluctant to make their protected works readily available on the Internet without reasonable assurances against massive piracy. [FN6] For the software industry alone, rampant copyright infringement now accounts for billions of dollars in worldwide losses each year. [FN7] Naturally, software companies and other copyright-based industries have urged the federal government for years to strengthen copyright protections in order to address the problem. [FN8]

In 1993, President Clinton formed the Information Infrastructure Task Force for the purpose of articulating and implementing the Administration's policy regarding the Internet, which it has termed the National Information Infrastructure ("NII"). [FN9] This policy was first articulated in a report by the Working Group on Intellectual Property Rights in 1995, commonly known as the "White Paper." [FN10] *185 The Working Group, headed by Secretary of Commerce Ronald Brown and Commissioner of Patents and Trademarks Bruce Lehman, argued that, while copyright protection for creative works on the NII was necessary for the NII to develop to its full potential, relatively few amendments to existing copyright law were required. [FN11] Accordingly, the Working Group's White Paper proposed a few select amendments to the Copyright Act of 1976 ("Copyright Act") [FN12] in order to "take proper account of the current technology." [FN13]

Based upon the Working Group's proposals, both houses of Congress proposed several pieces of legislation, which eventually culminated in the passage of two acts in 1998: the No Electronic Theft Act ("NET Act") [FN14] and the Digital Millennium Copyright Act ("DMCA"). [FN15] These acts were eagerly supported and acclaimed by copyright-based industries, such as software companies, movie studios, record companies, and book publishers. However, in its "high-speed" attempt to curtail the problem of Internet piracy, Congress appears to have given more consideration to the interests of these powerful industry groups than to those of the general public, for whom the benefits of copyright law were originally intended. [FN16]

This Comment will examine the current state of criminal liability for software piracy on the Internet in light of the newly enacted No Electronic Theft Act and Digital Millennium Copyright Act. Part II is a short survey of the Internet, outlining its origins and its various forms of communication. Part III discusses how federal copyright law, including the NET Act, addresses criminal copyright infringement on the Internet and who is affected by it. Part IV examines the DMCA's criminal provisions and their potential impact on this area of copyright law. Finally, Part V asserts that while the NET Act *186 necessarily fills a void in the Copyright Act, the DMCA is too vague, overbroad, and potentially more harmful than helpful to the public. Part V also posits several alternatives to the drastic criminal measures prescribed by the DMCA.

II. A Roadmap of the Information Superhighway

A. Origin of the Internet

The Internet was created in 1969 as an experimental project of the Advanced Research Project Agency, and was originally called ARPANET. [FN17] This was a network [FN18] of computers owned by the military, defense contractors, and university laboratories conducting defense-related research. [FN19] Soon, ARPANET expanded beyond its origins in the United States to connect to universities, corporations, and people all around the world. [FN20] During this process, the Defense Advanced Research Projects Agency ("DARPA") developed rules and procedures, called "protocols," for sending and receiving data between computers on the network. [FN21] Thus, ARPANET eventually came to be known as "DARPA Internet," and finally just the "Internet." [FN22]

As ARPANET grew, similar networks were developed to link universities, research facilities, businesses, and individuals together. [FN23] Eventually, each of these private networks were all linked together, allowing users of any computer linked to one of the networks to transmit communications to each other. [FN24] This series of linked networks--which are linked computer networks themselves--formed the backbone of the modern day Internet. [FN25] The Internet now *187 consists of a collection of national, regional, and local networks running under a standardized set of protocols. [FN26]

Although the Internet is subsidized by the federal government of the United States, no single entity owns it, nor is there any centralized authority or control over it. [FN27] Rather, regional networks are connected so that they may all communicate with each other. [FN28] Thus, if one network becomes inaccessible, information is re-routed through other networks until it reaches its intended target. [FN29] Due to the Internet's international scope, however, it is not politically feasible for any single authority to control all the traffic of information on the Internet. [FN30] Many countries have different standards concerning distribution and copyright protection of information over the Internet. [FN31] Thus, if regulations are to govern the Internet as a whole, they must be agreed upon by international treaty and implemented individually by each participating country. [FN32]

B. Accessing the Internet

There are two common methods used to access the Internet. Users may either employ a computer connected to a network which gives them access to the Internet, [FN33] or they may use a personal computer with a modem [FN34] to connect onto such a network. These *188 networks are controlled by a wide variety of commercial, academic, and governmental organizations. [FN35]

Typically, individuals obtain Internet access through a commercial Internet Service Provider ("ISP"), which offers modem access to its own Internet-linked network. [FN36] An ISP generally charges monthly or hourly fees, depending on the type of account, for access to the Internet. [FN37] National commercial services, such as America Online, Prodigy, and Microsoft Network, offer their own online content [FN38] in addition to Internet access. [FN39]

Although these commercial services are most popular, many students, faculty, and researchers may also access the Internet through their respective colleges, universities, libraries, and institutions. [FN40] Educational institutions frequently employ their own network, linked directly to the Internet, so that students and professors may have free access to the Internet using computers on campus. [FN41] Similarly, many employers link their office computer networks to the Internet in order to provide their employees with access to other businesses, online services, and various sources of valuable information worldwide. [FN42]

In addition, individuals can access the Internet using a "bulletin board system" ("BBS"), a local dial-up computer service where users can exchange ideas and information. [FN43] BBSs range from a single computer with only one line, allowing only one user at a time, to multiple computers linked together servicing multiple users simultaneously. [FN44] Some are free, while others charge a small fee for access. [FN45] Unlike ISPs, however, not all BBSs offer direct access to the Internet. [FN46]

*189 C. Communicating on the Internet

When accessing the Internet, a user must also employ the appropriate method of communication. [FN47] This mostly depends upon which type of information and by what means the user wishes to send and/or receive data over the Internet. The most common methods are:

(1) electronic mail ("e-mail"), [FN48]

(2) automatic mailing list services ("listservs"), [FN49]

(3) newsgroups, such as USENET, [FN50]

(4) Internet Relay Chat ("IRC"), [FN51]

(5) "Telnet" real time remote computer operation, [FN52] and

(6) remote information retrieval, such as File-Transfer Protocol ("FTP"), [FN53] or the World Wide Web ("Web"). [FN54]

Of these methods, IRC, USENET, FTP, and the Web are most commonly used to transfer pirated software over the Internet. [FN55] IRC *190 is a convenient forum for users to advertise and request pirated software in disguised chat rooms. [FN56] USENET is an extensive conglomeration of newsgroups that allows users to discuss topics of interest and to exchange computer files. [FN57] FTP host computers act as a convenient repository for pirates to store illegal software, easily downloadable with the proper username and password. [FN58]

The most well-recognized of these methods, however, is the World Wide Web. [FN59] The Web was originally developed at CERN, the European Particle Physics Laboratory, to allow international teams of researchers and engineers to easily share information amongst themselves. [FN60] The Web was designed to serve as a universal online database, able to store a vast array of information and accessible to users around the world. [FN61] To this day, it is by far the "most advanced information system developed on the Internet." [FN62]

The Web is based on the Hypertext Markup Language ("HTML") and programs that "browse" [FN63] the Web by displaying HTML documents, which contain text, images, sound, animation, or video. [FN64] HTML documents, also known as "Web sites," often have links to other documents on the Internet, which can be accessed by simply clicking on them with a computer mouse. [FN65] The Web itself is simply a series of such documents stored in various computers around the world. [FN66] It was designed so that anyone with a computer could become part of the Web by simply running the appropriate *191 software on a computer and attaching it to the Internet. [FN67] Consequently, like the Internet, no single organization controls the Web, nor is there any centralized point from which anyone may monitor the Web's content. [FN68]

Several helpful services are available, however, to search the Web when one needs to find particular information. These services, called "search engines," [FN69] allow users to search for Web sites by picking a subject category or by using key words to focus on a topic. [FN70] For example, a user looking for biographical information on Justice Learned Hand would simply type "Learned Hand" into a search engine, and then be presented with a list of Web sites about Justice Hand or sites that refer to his name. Such services, combined with the accessible nature of the Internet, make the Web the largest, most versatile source of information in the world. [FN71]

D. Software Piracy on the Internet

Unfortunately, the accessible nature of the Internet has also manifested some definite drawbacks. Despite efforts by vendors and anti-piracy groups, software piracy [FN72] is flourishing on the Internet. [FN73] *192 Software is a particularly attractive commodity due to its relatively high value on the black market and the fact that a perfect reproduction may be made in only a matter of seconds. [FN74] Pirated software, commonly known as "Warez" [FN75] on the Internet, is openly advertised on Web sites, IRC channels, and newsgroups worldwide because these sites provide the perfect forum for pirates to conveniently sell and trade pirated software to the general public. [FN76]

Software pirates normally fall into one of three categories: (1) organized pirates, consisting of hackers who copy on a large scale and usually for profit; (2) individual computer users, who copy software from the Internet, friends, or colleagues in order to avoid paying its retail price; and (3) corporate employees, individuals in the workplace who copy unlicensed software, with or without management approval. [FN77]

An experienced pirate, or hacker, can breach the copy protections of virtually any computer program, some worth thousands of dollars, and sell it for a mere fraction of its value. [FN78] Internet users need only request what they want on an IRC channel or search for it on a Web site, and may thereby download a full version of that software in a matter of minutes. [FN79] However, many pirates simply distribute their "Warez" for free as a way of garnering notoriety and *193 respect among their peers. [FN80] Others seem to engage in software piracy simply for the sake of anarchy, as a way to thumb their noses at the government and software industry. [FN81]

What is more problematic is that software pirates can make themselves completely anonymous and thus difficult for the authorities to track down via the Internet. Anonymous remailers [FN82] are popular for this purpose, making it virtually impossible to trace an e-mail message to its actual sender. [FN83] Pirates can also adopt an alias, subscribe to an account under that assumed name, and thereby access the Internet "disguised." [FN84] Skilled pirates can also hack people's phone records and Internet accounts to assume their electronic identity. [FN85] Often, pirates will store their bootlegged software on a *194 publicly accessible remote computer, such as an FTP server, [FN86] where thousands of copies can be downloaded in a matter of hours. [FN87] By the time the machine's owner has discovered the pirated software and deleted it, the damage has already been done and the pirate is nowhere to be found.

Software piracy on the Internet has not only hurt the entire software industry, but has adversely affected the United States economy. [FN88] The Software Publishers Association ("SPA"), an organization created to fight Internet piracy, [FN89] estimates that nearly half of the 523 million new software programs used in 1996 were pirated. [FN90] The SPA also claims that the software industry loses more than $13 billion a year from piracy. [FN91] These losses are ultimately absorbed by the consumer because software companies are forced to raise their prices to offset the fiscal impact on their business. [FN92]

In an era when the United States economy relies heavily on job opportunities and the profits generated by copyrighted works, software piracy has become a severe bane on the economic growth of the United States. [FN93] Since more than half of U.S. workers are employed *195 in information-based jobs, the potential profits lost by piracy translate into countless lost jobs and lower wages. [FN94] Software piracy hurts small companies most, however, because they lose income necessary to continue operating and remain competitive. [FN95] Consumers also suffer because less competition means fewer innovative goods and services will be available on the market. This translates into "a reduction in profits for manufacturers, a reduction in money available for investment and research in new products, and, consequently, more expensive software for the consumer." [FN96]

III. Rules of the Road: Copyright Law on the Internet

Federal copyright law is derived from Article I, section 8, clause 8 of the United States Constitution [FN97] and is governed by the Copyright Act of 1976. [FN98] In its purest form, copyright law is aimed at protecting the original expression of ideas. [FN99] The fundamental purpose of the constitutional grant of copyright, however, is to encourage individuals to produce and disseminate their creative works for *196 the benefit of the public. [FN100] By granting authors exclusive rights to their creations, copyright law creates such an incentive. [FN101]

Nonetheless, there has always been a "delicate equilibrium" between the competing interests of the public and the copyright owner. [FN102] While the copyright owner wishes to reap the maximum rewards from his or her creation, the public wishes to have as much access to the author's work as it can. Thus, copyright law affords protection to authors and inventors as an incentive to create, but it must also "appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation." [FN103]

A. Copyright Act of 1976

1. Historical overview

The inception of modern copyright law began when Congress enacted the Copyright Act of 1909, [FN104] which sought to codify the principles underlying the Copyright Clause. [FN105] Over time, the Copyright Act of 1909 became problematic because the statutory scheme clearly did not contemplate the development of computers and high technology. Thus, the Copyright Act of 1976 rewrote much of copyright law--except where it applied to copyrighted works embodied in computers.

This issue awaited further study by the Commission on New Technological Uses of Copyright Works, which issued its final report *197 in 1978, leading to the adoption of the Computer Software Copyright Act of 1980. [FN106] This Act amended the list of definitions under the Copyright Act to include "computer program." [FN107] The 1980 Act also replaced 17 U.S.C. § 117 with a provision that allows a lawful owner of a computer program to make copies provided they are "created as an essential step in the utilization of the computer program" or for "archival purposes." [FN108]

2. Copyright protection under the Copyright Act

The Copyright Act protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." [FN109] Copyright law thus protects the original expression of an idea but not the idea itself. [FN110] The Copyright Act lists several types of works eligible for protection, such as literary works, [FN111] musical works, dramatic works, motion pictures, and sound recordings. [FN112] In keeping pace with technology, the definition of "literary works" has expanded to include all forms of digitized expression, including text, *198 sounds, images, video, and data. [FN113] Thus, computer software has become eligible for copyright protection under the umbrella of "literary works." [FN114]

Once a copyright has been established, its owner has the following exclusive rights:

(1) to reproduce the copyrighted work in copies or phono-records;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. [FN115]

Copyright on an international scale is governed by the Berne Convention for the Protection of Literary and Artistic Works, [FN116] which required Congress to amend the Copyright Act to provide measures for the mutual enforcement of copyrights between nations. [FN117] The Berne Convention provides authors with a minimum set of internationally recognized rights, including reproduction, adaptation, performance, and other forms of communication to the *199 public. [FN118] However, the Berne Convention did not implement any specific means for copyright owners to enforce their rights, nor did it impose penalties on member states that fail to satisfy their obligations. [FN119]

These deficiencies were solved by the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement"), [FN120] which became effective in 1995 following the Uruguay Round negotiations and the creation of the World Trade Organization. [FN121] The TRIPS Agreement incorporates the substantive provisions of the Berne Convention and provides detailed enforcement mechanisms which participating countries must make available to copyright owners. [FN122] The World Intellectual Property Organization ("WIPO") Treaties, signed in 1996 and implemented by the DMCA in 1998, provide further remedies for copyright owners to enforce their rights internationally. [FN123]

3. The fair use doctrine

A copyright holder's exclusive rights are subject to numerous restrictions, among them the doctrine of "fair use." The fair use doctrine actually permits the infringement of a copyright owner's exclusive rights, provided that certain conditions are met. [FN124] The Copyright Act lists four factors to be considered in determining whether or not a use is fair:(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

*200 (4) the effect of the use upon the potential market for or value of the copyrighted work. [FN125] The fourth factor is generally considered the most important, [FN126] and commercial use of a copyrighted work ordinarily weighs against a finding of fair use. [FN127]

4. Criminal liability under the Copyright Act

Copyright infringement was not a criminal offense until 1897, 107 years after the first federal copyright act was passed, by virtue of a congressional amendment. [FN128] However, those criminal provisions were limited to unlawful performances and representations of copyrighted dramatic and musical compositions that were "willful and for profit." [FN129] Such copyright infringement was treated as a misdemeanor, punishable by imprisonment for up to one year. [FN130]

In 1909, copyright law was substantially revised and its criminal provisions were expanded to cover infringement of all copyrighted material. [FN131] The 1909 Act's legislative history indicates that the rationale behind these changes was to provide protection against pirates who "were both financially irresponsible and transient in their business locations, making injunctions and civil damages futile." [FN132]

In 1971, the criminal provisions of the Copyright Act of 1909 were expanded to cover willful, for-profit infringement of sound recordings, in response to losses of over $100 million in the recording industry from record and tape piracy. [FN133] Then, in 1974, criminal penalties for infringement of sound recordings were increased due to *201 the perception that "record piracy is so profitable that ordinary penalties fail to deter prospective offenders." [FN134] Congress raised the maximum fine for copyright infringement of a sound recording, [FN135] but refused to increase the maximum prison sentence because it considered copyright infringement "essentially an economic offense." [FN136]

The Copyright Act of 1976 made several more revisions. The "willfully and for profit" mens rea requirement was modified to "willfully and for purposes of commercial advantage or private financial gain." [FN137] Courts found that this mens rea requirement did not require actual causation, but that an infringer need only have intended to receive a commercial advantage or financial gain. [FN138] Criminal penalties were also increased; for general copyright infringement, the maximum fine was increased to $10,000, whereas for sound recordings and motion pictures, the maximum fine was increased to $25,000. [FN139]

In 1982, in response to strong lobbying pressure from the motion picture and sound recording industries, Congress increased the criminal penalties for the reproduction or distribution of sound recordings, motion pictures, or other audiovisual works. [FN140] The legislative history indicates concerns over hundreds of millions of dollars lost per year due to the widespread growth of piracy in those *202 industries and "the huge profits to be made, while the relatively lenient penalties provided by the current law have done little to stem the tide." [FN141] Perhaps more importantly, there was a concern over the reluctance among federal prosecutors and judges to prosecute copyright infringement because they regarded it as less serious than a felony, which resulted in less prosecutions as well as more lenient sentences in the few cases actually pursued. [FN142] Thus, under the 1982 legislation, criminal penalties for the unauthorized reproduction or distribution of at least sixty-five copies of a motion picture, or at least one hundred copies in the case of sound recordings, within a 180-day period were increased to a maximum fine of $250,000, up to five years in prison, or both. [FN143]

In 1992, the continual, rapid growth of piracy encouraged Congress to establish felony penalties for all categories of copyright infringement under the Copyright Felony Act of 1992. [FN144] This amendment was primarily in response to the tremendous growth of lost profits due to software piracy, estimated at $2.4 billion in 1990. [FN145] The software industry argued that the piracy which plagued the motion picture and record industry in the previous decade was now crippling the software industry and that, therefore, the same criminal penalties ought to be employed as a remedy. [FN146] Congress thus expanded the penalty of a $250,000 fine, up to
five years in prison, or both, to apply to any case of infringement in which at least ten infringing copies of a copyrighted work, with an aggregate value of more than $2500, have been made within a 180-day period. [FN147] It *203 is not clear, though, why Congress chose to include all types of works, rather than only software. [FN148]

In 1994, this steady increase in the criminalization of copyright law was impeded, however, by the United States v. LaMacchia [FN149] decision, which demonstrated how perpetrators could only be prosecuted under the Copyright Act for electronic copyright infringement if they realized a commercial advantage or private financial gain, but not for non-profit Internet piracy. [FN150]

B. A Problem in Enforcement: The LaMacchia Loophole

In 1994, David LaMacchia, a twenty-one year old computer hacker attending the Massachusetts Institute of Technology ("MIT"), set up a BBS called Cynosure on MIT's computer network. [FN151] LaMacchia actively encouraged his users to upload popular software programs onto Cynosure. He then transferred these programs to a second BBS named Cynosure II, where they could be downloaded by users who knew the Cynosure password. [FN152] The resulting worldwide traffic on MIT's computers, generated by the lure of free software, alerted the federal authorities. [FN153]

A federal grand jury subsequently indicted LaMacchia for violation of the federal wire fraud statute, but not for copyright infringement. [FN154] Unlike the criminal copyright statute, 17 U.S.C. § 506(a), the federal wire fraud statute did not require the government to prove that LaMacchia had personally profited from the scheme to defraud. [FN155] However, based on Dowling v. United States, [FN156] the *204 district court held that the wire fraud statute could not be applied to LaMacchia's actions and thereby dismissed the indictment. [FN157]

This decision exposed a "loophole" in copyright law--software pirates, as well as other copyright infringers, could not be held criminally
liable for copyright infringement unless it could be shown that they had somehow profited financially from their infringement. [FN158]

LaMacchia's acquittal incited legislators to consider new ways of imposing criminal sanctions for software piracy on the Internet. [FN159] Proponents for a stricter standard argued that the LaMacchia decision opened the floodgates for Internet pirates to freely trade illegal software and would thereby discourage authors from disseminating their creative works. [FN160] Opponents, however, contended that broadening the scope of criminal copyright infringement would be "unnecessary and [would] risk causing more harm than good to the balance of rights established by the Copyright Act." [FN161]

C. Congressional Response: The No Electronic Theft Act

On December 16, 1997, the No Electronic Theft Act ("NET Act") [FN162] was signed into law, amending § § 101 and *205506(a) of Title 17 and § 2319 of Title 18 of the United States Code. The NET Act reduced the standard for criminal copyright infringement by dding a provision to § 506 which does not require that the infringement be done for the purpose of commercial advantage or private financial gain. [FN163]

Under § 506(a)(2), defendants may now be prosecuted for mere willful infringement, [FN164] by reproduction or distribution, of any copyrighted work with a retail value of more than $1000. [FN165] The NET Act also amended the definition of "financial gain" to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works." [FN166] This new definition thereby expanded the scope of criminal copyright law to prohibit bartering and trading of protected works.

*206 Criminal penalties are provided under § 2319 of Title 18. Individuals convicted of willfully copying or distributing one or more copies of a copyrighted work on the Internet valued at $1000 or more can now be sentenced to up to one year in prison. [FN167] For ten or more copies valued at $2500 or more, an individual can be sentenced to up to three years in prison for a first offense, and up to six years for subsequent offenses. [FN168] When infringement is committed for the purpose of commercial advantage or private inancial gain, an individual can be sentenced to up to five years in prison. [FN169] Fines may be imposed as an alternative or in addition to these sentences. [FN170] The statute of limitations for criminal prosecution was increased from three to five years. [FN171]

The NET Act also permits a victim of a willful copyright infringement to submit an impact statement concerning the extent and scope of the loss suffered, including the estimated economic impact on the victim. [FN172] Based on these impact statements, the United States Sentencing Commission is ordered to set sentencing guidelines that are "sufficiently stringent to deter such a crime," considering "the retail value and quantity" of the infringed works. [FN173] Clearly, Congress intended to create a strong criminal deterrent for copyright infringers.

Some critics argue that the NET Act "closes a loophole that doesn't really exist." [FN174] They contend that the Copyright Act by itself was sufficient to address the problem of software piracy and that the NET Act "upsets the constitutional balance provided by the Copyright Act." [FN175] The danger is that users may accidentally copy a *207 copyrighted work that they believe is available as "fair use" but will in fact subject them to prosecution under the NET Act. [FN176]

The Act's broad coverage also has the potential to criminalize minor violations which have traditionally been the subject of civil copyright infringement actions. Prior to the NET Act, criminal liability for copyright infringement was aimed at deterring only the most serious instances of infringement. [FN177] However, the NET Act's low threshold--willful receipt or expectation of receipt of a copyrighted work "of value"--can potentially encompass a much greater proportion of the Internet population, perhaps even a majority. [FN178] The Act could potentially give federal prosecutors and judges a great deal of discretion, and plenty of firepower, to prosecute relatively minor infringers. [FN179]

However, Congress has emphasized that the NET Act is only aimed at people who have acted intentionally. [FN180] Whether this intent requirement excludes individuals who mistakenly believe they are making a "fair use" of a copyrighted work but nevertheless
ntended to use that work is unclear. As a safeguard, Congress also included a provision in § 506(a) which emphasizes that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement." [FN181]

Previously, courts have interpreted the willfulness requirement quite strictly, such that accidental or mistaken infringement is normally not sufficient to satisfy the willfulness standard. [FN182] Therefore, *208 courts will most likely interpret this amended provision in a similar manner so as to prevent accidental or minor infringers from being easily prosecuted under the NET Act.

IV. Paving a New Information Superhighway

A. The Digital Millennium Copyright Act

The Digital Millennium Copyright Act ("DMCA") [FN183] was enacted on October 28, 1998, during the dying days of the 105th Congress. [FN184] The DMCA implemented the WIPO Copyright Treaty [FN185] and the WIPO Performances and Phonogram Treaty, [FN186] which were signed by the United States in 1997. [FN187] The WIPO treaties obligated signatory countries to provide "adequate legal protection and effective legal remedies against the circumvention of effective technological measures" that copyright owners use to protect their works from piracy. [FN188]

In addition, the DMCA limits the liability of telephone companies and ISPs for copyright infringement in certain situations. [FN189] The DMCA also grants additional protection for analog works, sound *209 recordings, and copyright management information. [FN190] Moreover, the DMCA provides sweeping fair use exemptions, which allow libraries, schools, and others to make limited use of copyrighted materials. [FN191]

B. Title I of the Digital Millennium Copyright Act

To further the goals of the WIPO treaties, [FN192] the DMCA was designed to prohibit the circumvention of technological measures, e.g. passwords or encryption measures, and the devices or services that circumvent such technological measures. [FN193] The DMCA provides both civil and criminal remedies for violations of these provisions.

The DMCA's so-called "anti-circumvention" provision prohibits the "circumvention" [FN194] of any "technological measure" [FN195] used by a copyright owner that "effectively controls access" to his or her copyrighted work. [FN196] Thus, if a pirate hacks a password or some form of encryption to obtain access to a copyrighted software file, he or she will be in violation of federal copyright law. However, the effective date of the anti-circumvention provision has been deferred for two *210 years until after the date of its enactment, i.e. October 28, 2000. [FN197] During those two years, and every three years thereafter, the DMCA requires the Librarian of Congress, on the recommendation of the Register of Copyrights, to conduct a formal "on the record" rulemaking proceeding to determine whether the anti-circumvention provision will "adversely affect" an individual's or institution's ability to make non-infringing uses of a "particular class of copyrighted works." [FN198] The Librarian is then required to issue a three-year waiver of the anti-circumvention provision to any class of copyrighted works for which that prohibition has "adversely affected," or is likely to affect, the availability of fair use and other non-infringing uses. [FN199]

The DMCA also prohibits the manufacture, import, offer to the public, or provision of any device or service which circumvents a "technological measure that effectively controls access to a [copyrighted] work." [FN200] Section 1201(a)(2), the so-called "anti-device" provision, applies to all devices or services that satisfy one of three criteria:

(1) is primarily designed or produced for the purpose of circumventing a technological measure;

(2) has only limited commercially significant purpose or use other than to circumvent a technological measure; or

(3) is marketed for use in circumventing a technological measure. [FN201]

Using the same three criteria, § 1201(b) prohibits devices or services that circumvent a technological measure "that effectively protects a right of a copyright owner." [FN202] Although § 1201(a)(2) and § 1201(b) are worded similarly and employ similar tests, the Senate Report indicates that "they are designed to protect two distinct rights *211 and to target two distinct classes of devices." [FN203] While § 1201(a)(2) is designed to protect access to a copyrighted work, § 1201(b) is designed to protect "the traditional copyright rights of the copyright owner." [FN204]

Both provisions are intended to prevent the trafficking of so-called "black boxes," devices intended to "facilitate circumvention of technological measures for purposes of gaining access to or making a copy of a work." [FN205] Section 1201(b) is somewhat controversial, however, because it became effective immediately upon the DMCA's enactment, rather than requiring the Librarian of Congress to "filter" out its flaws as required by § 1201(a). [FN206]

The DMCA explicitly exempts several activities in seeking to preserve the fair use doctrine. First and foremost, it exempts nonprofit libraries, archives, and educational institutions from criminal penalties and possibly civil remedies if such institutions can demonstrate that they were using the work in good faith for fair use and not for any other purpose. [FN207] The DMCA also exempts many private activities, including reverse engineering, encryption research, privacy protection measures, and security testing. [FN208] Lastly, the DMCA provides a "savings clause" which states that it does not "affect rights, remedies, limitations, or defenses to copyright infringement, including fair use." [FN209]

*212 C. Criminal Penalties under the Digital Millennium Copyright Act

In enacting the DMCA, Congress clearly intended to create strong disincentives for potential infringers, such as software pirates, by imposing severe criminal penalties for a variety of offenses. Under § 1204, any person who "willfully or for purposes of commercial advantage or private financial gain" violates § § 1201 or 1202 is subject to:

(1) A fine of up to $500,000 and/or jail sentence of up to five years for the first offense; and

(2) A fine of up to $1,000,000 and/or jail sentence of up to ten years for any subsequent offense. [FN210]

The statute of limitations for criminal prosecution is five years, similar to the NET Act. [FN211] The Senate Report indicates that the willfulness standard applicable under this subsection "is identical to the standard used in [17 U.S.C. § 506] to establish criminal violations." [FN212] Thus, prior case law interpreting the "willful" mens rea requirement under § 506 will presumably apply to prosecutions under § 1204.

D. Future Ramifications of the Digital Millennium Copyright Act

The DMCA is a voluminous tome of wordy and vague prohibitions, incorporated from assorted bills pending for years beforeCongress prior to its enactment. [FN213] It is a product of compromise between the competing interests of two major groups: the software industry, movie studios, record companies and book publishers, versus 40,000 libraries, various educational institutions, and a few consumer groups. [FN214] In some cases, these groups negotiated for months before they agreed on draft legislation that satisfied every group's *213 agenda. [FN215] As a result, the DMCA is not only extremely long, but far from being easily comprehendible. [FN216]

1. Overbreadth

The statutory language of the DMCA is at times so broad that it is difficult to discern exactly what it prohibits. The "anti-device" provisions state that "[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that circumvents a technological measure or protection afforded thereby. [FN217] Theseprovisions purportedly target "black boxes," [FN218] but nothing in the DMCA's statutory language or legislative history suggests that its application is limited to such devices. If one takes the language of the statute to mean what it literally says, then many relatively minor infringers may be unnecessarily caught in the wide net cast by the DMCA.

For example, some Internet users have created "Warez" pages, or Web sites that advertise or link to pirated software that is located elsewhere on the Internet. [FN219] The owners of these Web sites, often high school or college-age kids, do not usually pirate the software themselves, but merely locate it elsewhere on the Internet using specialized search engines. They then provide "links" on their Warez pages, which allow visitors to download pirated software by simply clicking on such links. Therefore, while a Warez page does not actually supply pirated software, it acts as an intermediary that provides a convenient listing of pirated software available for download from the Internet.

*214 Nevertheless, the owners of Warez pages may be in violation of § 1201(b)(1)(B) because they "offer to the public" a "service" which has "only limited commercially significant purpose or use other than to circumvent a technological measure." [FN220] Although it is not clear whether Warez page owners are direct infringers in this sense, because they do not usually hack the software themselves, it is very likely that they can be held contributorily liable for supplying the means by which the Internet community can find and download such pirated software. [FN221]

The willfulness and "commercial advantage or private financial gain" requirements under § 1204 are easily satisfied in most cases because nearly all Warez pages feature advertisements which earn the owner a small fee every time a user clicks on it. Warez page owners may thus be held criminally liable for felony copyright infringement, even though they may have played absolutely no part in hacking or supplying the pirated software in question. Although it is not likely that such offenders will be prosecuted under the DMCA due to the nature of their crimes, the mere fact that they can be prosecuted demonstrates how broadly the language of § 1201 is worded nd how much discretion is afforded to federal prosecutors and judges. [FN222]

Also, it is important to note that the anti-circumvention measure does not actually require copyright infringement of a protected work, but only that a defendant circumvent a technological measure which controls access to a protected work. Section 1201(a)(1)(A) provides "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title." [FN223] On its face, this provision applies to the act of circumvention per se, and does not require the circumvention to have been done for the purpose *215 of infringing a protected right. [FN224] The anti-circumvention provision thus applies regardless of whether the access gained infringes a protected right in the work. In contrast, the anti-device provisions limit their scope to circumvention of measures that protect "a right of the copyright owner." [FN225]

The DMCA's legislative history indicates that the copyright industries insisted, and Congress apparently conceded, that this discrepancy is necessary because legal enforcement of copyright rights is too cumbersome and inefficient to address concerns about copying over he Internet. [FN226] Proponents contended that by limiting the prohibition on circumvention to infringing uses, Congress would "provide a roadmap to keep the purveyors of 'black boxes' and other circumvention devices and services in business . . . [which would] reduce the legal protection for . . . [self-help] technologies to an inadequate and ineffective level." [FN227] Thus, the argument follows, if copyright law recognizes circumvention as a legitimate way to make privileged uses of copyrighted works, it will become more difficult to sue manufacturers and vendors of circumvention software. [FN228]

*216 The Supreme Court rejected a very similar argument, however, in Sony Corp. of America v. Universal City Studios, Inc. [FN229] At the time when the video cassette recorder ("VCR") was first being introduced into the market, Universal brought suit against VCR manufacturers for contributory infringement of its motion pictures, contending that the VCR permitted its users to freely copy home movies without having to pay a licensing fee for additional copies. [FN230] The Supreme Court held that VCRs were capable of being used for time shifting, that time shifting was a legitimate use, and hence that VCR manufacturers could not be sued for contributory nfringement simply for manufacturing and selling equipment that could be used for infringing as well as noninfringing uses. [FN231] Thus, manufacturers of devices with bona fide noninfringing uses cannot be sued simply because these devices can also be used to make infringing uses. [FN232]

Carried into this context, the Sony decision could protect manufacturers and sellers of technology that is primarily designed for acceptable circumvention because, under the Sony rationale, they could only be held liable if it is shown that they intended to aid circumvention for illegal purposes. Under the plain language of § 1201(a)(1)(A), if the act of circumvention itself is illegal, then there is absolutely no way to make fair use of a copyrighted work that is protected by a technological measure without violating the DMCA. Moreover, copyright owners can go after manufacturers and sellers of any product that permits circumvention, without needing to prove specific acts of infringement. Thus, a challenge to the anti-circumvention provision could possibly prevail under the rationale employed in Sony.

2. Vagueness

The DMCA's rather vague language could also potentially undermine some valid uses of software that were previously considered fair use. Foreseeably, individuals who mistakenly believe they are *217 making a fair use of software on the Internet may be in violation of § 1201's anti-circumvention or anti-device provisions and thereby become subject to felony prosecution. The DMCA contains a "savings clause," [FN233] which is geared towards preserving fair use and other copyright infringement defenses, but this clause does not obviate the problem because the fair use doctrine is inherently uncertain and case-specific. [FN234] In close cases, the DMCA's broadly worded provisions will undoubtedly weigh against a finding of fair use where it appears that a defendant's conduct falls under the Act's sweeping coverage. The uncertainty caused by the DMCA's vague language and the consequent fear of liability may therefore have a chilling effect on the public's exercise of the fair use defense, despite the savings clause. [FN235]

For instance, many Warez page owners believe that by disclaiming their involvement in the actual pirating of software and by cautioning isitors that they may only evaluate such software for a limited time, they will be exempt from any sort of copyright liability. [FN236] This belief stems from the fair use doctrine, which often *218 permits a de minimis, or minimal use, of a copyrighted work for the purpose of evaluating a product. [FN237] However, due to § 1201's broad language, as long as there is a "circumvention of a technological measure" or protection afforded thereby, [FN238] the unwary Warez page owner may still be subject to criminal liability. The DMCA thus fails to provide adequate notice to Warez page owners and Internet users alike that this activity may not be justified as fair use.

Also, since fair use is a defense to copyright infringement, the doctrine may not be a defense to the independent anti-circumvention provision under § 1201(a)(1), which does not require copyright infringement in order to apply in some situations. [FN239] The House Report states that "where the access is authorized, the traditional defenses to copyright infringement, including fair use, would be fully applicable." [FN240] However, the Report further explains, "an individual would not be able to circumvent in order to gain nauthorized access to a work, but would be able to do so in order to make fair use of a work which he or she has acquired lawfully." [FN241]

This presents a problem for parody and other fair uses of copyrighted works because such uses are often made without the authorization or knowledge of the work's owner, since in most cases he or she does not wish to be parodied. Section 1201(a)(1) effectively makes unauthorized fair use illegal where the work is protected by a technological measure, since individuals need to access a work in order to make fair use of it. The very purpose of the fair use doctrine is *219 thereby eviscerated. Parodists and satirists will be hard pressed to obtain the permission of copyright owners to parody their works.

3. Severe criminal penalties

Perhaps even more importantly, the DMCA imposes some rather harsh criminal penalties on copyright infringers. [FN242] For nstance, imagine that a software pirate, such as David LaMacchia, "offer[ed] to the public" a "service," such as Cynosure, which circumvents the technological measures of copyrighted software for profit. [FN243] Cynosure would easily satisfy § 1201's third criterion, since it was a service "marketed . . . for use in circumventing a technological measure [or protection afforded thereby] that effectively controls access to a [copyrighted] work" by encouraging users to upload and download copyrighted software that has been pirated. [FN244]

LaMacchia could thereby be subject to criminal penalties under § 1204 and would face a prison sentence of up to five years and/or a fine of up to $500,000 for the first violation, and ten years and/or a fine of up to $1,000,000 for each subsequent offense. [FN245] No one would doubt that LaMacchia deserves a strong penalty for the "incident" at MIT, but should he be sentenced to five or ten years in prison? Most convicted rapists and murderers, whose crimes society regards as much more heinous, do not serve that much time. [FN246]

4. The section 1204 "loophole"

Section 1204(a) is strikingly similar to the provisions of 17 U.S.C. § 506(a)(1). [FN247] However, § 1204 does not address infringement cases which do not involve a "commercial advantage or private *220 financial gain." [FN248] This poses yet another LaMacchia loophole, which the NET Act will obviously not be able to address retroactively. Is this just an oversight, or has Congress purposefully excluded a "fall back" provision, such as the NET Act amendment in § 506(a)(2), from § 1204 in order to balance out its harsh criminal penalties? The DMCA's legislative history does not explain this discrepancy. [FN249]

This omission, whether purposeful or not, will inevitably lead to the very same problem posed by the LaMacchia case. For example, if a software pirate obtains a software program and hacks away its copyright protection, that pirate has effectively violated § 1201(a) of the DMCA by circumventing a technological measure that controls access to a copyrighted work. [FN250] However, if that pirate does not ake a profit or obtain any sort of commercial advantage from his or her actions, then that pirate cannot possibly be subject to § 1204 because he or she has not obtained any "commercial advantage or private financial gain." [FN251] In cases where there is infringement of a copyrighted work valued at more than $1000, the amended § 506(a)(2) will still permit prosecution of that individual, but what about those situations where a technological measure is circumvented, but no copyright has been infringed?

V. Conclusion: Cracks in the Pavement

In just the past two years, the state of criminal liability for copyright infringement on the Internet has been drastically altered. Where previously many of the large copyright industries complained that copyright law did not deter software pirates and lacked proper redress for "electronic" copyright infringement, they are now afforded several new criminal remedies against potential infringers under both the NET Act and DMCA. However, in its attempt to preserve the rights of copyright owners, Congress has bowed too far to *221 the interests of powerful industry groups by adopting a policy of enacting copyright legislation that is formulated solely through the process of negotiation and compromise between such groups. [FN252]

The problem with this approach is that the interests of the general public, the group most affected by such legislation, are woefully underrepresented. [FN253] Perhaps the greater problem is that the public is generally uninformed about copyright law, has no direct or immediate interest in preserving the public domain, and is consequently uninterested in the ramifications of pro-author copyright legislation, such as the DMCA. Lobbying by opposing industry groups does not serve as an effective proxy for the consumer interests of the public at large, especially where those interests vary significantly. [FN254] In such situations, the rights of copyright owners are generally increased at *222 the expense of the public's free access to copyrighted works and the public domain.

A. The No Electronic Theft Act

Few would argue that the NET Act is not a necessary measure, although perhaps it should have a higher threshold upon which to impose liability. [FN255] Nevertheless, software pirates like David LaMacchia should not be permitted to escape liability simply because they did not receive a pecuniary benefit from their conduct. This would defeat one of the most basic philosophies underlying copyright law: authors have the moral right to control their own original creations, reap the benefits of their labor, and protect the integrity of their works. [FN256] The NET Act provides copyright owners with an adequate deterrent to protect these rights where the infringer has not obtained a commercial advantage or private financial gain. There is little danger that an accidental or minor infringer will be prosecuted under the NET Act in light of its limitation to strictly intentional cases of infringement. [FN257]

The Department of Justice's first conviction under the NET Act is illustrative. On August 20, 1999, Jeffrey Gerard Levy, a 22-year-old student at the University of Oregon, pled guilty to violations of the NET Act for storing thousands of pirated software files on the university's network, so that they could be downloaded by the public for free. [FN258] On average, over five hundred pirated files were being downloaded off of the university network within a two-hour period. [FN259] This high amount of "traffic" alerted the university's administrators, who subsequently notified the U.S. Attorney's office. [FN260]

With Levy's guilty plea, he now faces three years in prison and a $250,000 fine, but will likely only get probation and a fine, according to the U.S. Attorney's office. [FN261] Such a punishment seems *223 appropriate since this case is strikingly similar to LaMacchia and is clearly not an accidental or minor case of infringement. By prosecuting such high profile cases, the Department of Justice and the software industry hope to effectively deter the Internet community from committing online piracy. [FN262]

B. The Digital Millennium Copyright Act

While the NET Act is arguably a necessary measure for the effective enforcement of criminal copyright law, the viability of the DMCA's anti-circumvention and anti-device provisions is dubious at best. The DMCA is overbroad, in that its provisions are so sweeping that even relatively minor infringers may be subject to felony penalties, and underinclusive, in that it poses yet another LaMacchia loophole. The statutory language of § 1201 is so vague and ambiguous, that it barely provides notice to even the most highly trained legal mind. Imagine how much of a surprise it will pose to the everyday Internet user who unknowingly violates its mandate. Perhaps more importantly, the DMCA's broad scope appears to criminalize uses of copyrighted works that were formerly protected as fair use. [FN263] And § 1204's criminal provisions impose such disproportionate fines and penalties that one has to question their propriety in comparison to much more violent and odious felonies.

Finally, consider the constitutional objective proscribed by the Copyright Clause: "To promote the Progress of Science and useful Arts." [FN264] As the Supreme Court espoused in Fogerty v. Fantasy, Inc., "[t]he monopoly privileges that Congress has authorized, while 'intended to motivate the creative activity of authors and inventors by *224 the provision of a special reward,' are limited in nature and must ultimately serve the public good." [FN265]

The DMCA does not further this basic premise of copyright law. Its broad language and severe criminal penalties in no way encourage authors to disseminate their original works to the public, other than to provide the industries that support them with a greater profit margin. On the contrary, the DMCA discourages the general public from making fair use of copyrighted works with its confusing language and harsh criminal penalties and thereby defeats the fundamental purpose of copyright law: to grant the public greater access to creative works of original authorship. [FN266] Congress has thus failed to "appropriately limit the extent of [copyright] protection so as to avoid the effects of monopolistic stagnation," [FN267] but has rather unnecessarily accorded a whole new set of rights to copyright owners.

C. The Alternatives

Internet piracy is not an incurable problem. It is simply the by-product of new technology and the inability of pre-existing law to adapt to the new digital environment. Therefore, to address the problem, only a few simple changes to copyright law prior to the DMCA were absolutely necessary. In its White Paper, the Working Group noted:

With no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights - and limitations on those rights - to promote the progress of science and the useful arts. Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology. [FN268]

The Working Group reasoned that most gaps in copyright law only require an explanation as to how they may be remedied by *225 existing law, while others present "rights or limitations that clearly fit within the spirit of the law but the letter of the law is in need of clarification to avoid uncertainty and unnecessary litigation." [FN269] As concluded by the Working Group:

Throughout more than 200 years of history, with periodic amendment, United States law has provided the necessary copyright protection for the betterment of our society. The Copyright Act is fundamentally adequate and effective. In a few areas, however, it needs to be amended to take proper account of the current technology. The coat is getting a little tight. There is no need for a new one, but the old one needs a few alterations. [FN270]

The DMCA, however, has taken the Working Group's narrowly tailored proposal [FN271] and expanded it beyond the scope of its intended use. The Working Group's original proposal for § 1201 prohibited the import, manufacture, or distribution of any device or service whose primary purpose or effect was to circumvent a protection measure "which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under [17 U.S.C. § 106]." [FN272] This relatively simple yet effective measure would have protected the exclusive rights of copyright owners under § 106 to the extent that those rights were threatened by the perils of Internet piracy. By limiting the coverage of § 1201 to those exclusive rights which were already protected under the Copyright Act, the Working Group sought to maintain the balance of interests between authors and the public. [FN273]

Section 1201(a)(1), however, carries this goal to an entirely new level by creating a new cause of action that permits copyright owners to prosecute circumventors of their protective devices--even where their exclusive rights have not been violated. Such an added level of *226 protection is wholly unnecessary and runs counter to the fundamental purposes of copyright law. [FN274]

There are also several other adequate alternatives. Professor I. Trotter Hardy prepared an analysis of the future of copyright law in relation to the Internet for the United States Copyright Office, in which he sets forth several "responses" to the problem of Internet piracy. [FN275]

First, Professor Hardy suggests that we simply do nothing. [FN276] In light of the popular perception that home-copying for non-commercial use is lawful, it may be difficult if not impossible to prevent such activity. [FN277] Rather, it may be better to wait "until things 'settle down" ' before responding to the problem with hasty legislation or court decisions that may be "inapt or irrelevant tomorrow." [FN278]

Second, Professor Hardy suggests that we simply educate the public about the importance of copyright law, so as to encourage them to "follow the rules" out of a sense of responsibility. [FN279] While this solution alone may be inadequate, there are certainly benefits which can be derived from making the public aware of the importance of intellectual property to the U.S. economy.

The Working Group found that "[m]ost people do not have a very clear idea about the role of intellectual property law in encouraging creativity and the importance of intellectual property to [the United States'] economic well-being." [FN280] If the public is made aware of the detrimental effects that a simple download of pirated software has on the American economy, then to some extent they may be discouraged from engaging in such activity. [FN281] However, this task is difficult because individuals have trouble understanding the technicalities of intellectual property law and "generally do not appreciate *227 the impact that an unauthorized use of a protected work can have in that market." [FN282]

Finally, Professor Hardy suggests that technology itself may be the key to solving the problem of Internet piracy, particularly in light of the fact that technology is essentially its cause. [FN283] Professor Hardy argues that restrictive technologies, such as encryption, [FN284] watermarks, [FN285] digital objects, [FN286] proprietary viewers [FN287] and the like, raise the costs of unauthorized use--in terms of time and trouble--above the benefits of such use, thereby discouraging Internet piracy. [FN288] In other words, when the time and trouble needed to commit piracy outweigh the value of the software's purchase price, individuals will naturally prefer to purchase such works rather than pirate them. Even the Working Group acknowledged that restrictive technologies are necessary to counter Internet piracy, but concluded that they "likely will not be effective unless the law also provides some *228 protection for the technological processes and systems used to prevent or restrict unauthorized uses of copyrighted works." [FN289]

Nevertheless, it is clear that plenty of alternatives exist which do not take away the substantive rights of the general public to the public domain. These alternatives, along with new technologies to be developed in the future, can effectively counter the damaging effects of Internet piracy without countering the underlying policies of copyright law. However, in its "high-speed" attempt to chase down software pirates on the Internet, Congress has unnecessarily upset the "delicate equilibrium" that existed between copyright owners and the general public for the greater part of this century. [FN290]

[FN1]. Although the World Wide Web is actually only a component of the Internet, it is commonly perceived to be synonymous with the Internet itself. See ACLU v. Reno, 929 F. Supp. 824, 836 (E.D. Pa. 1996), aff'd, Reno v. ACLU, 521 U.S. 844 (1997).

[FN2]. The National Information Infrastructure is actually a broader concept that "encompasses digital, interactive services now available, such as the Internet, as well as those contemplated for the future." Bruce A. Lehman & Ronald H. Brown, U.S. Dep't of Commerce, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 2 n.5 (1995), available in U.S. Patent and Trademark Office (visited Sept. 14, 1999) <http:// www.uspto.gov/web/offices/com/doc/ipnii/index.html>[hereinafter NII White Paper].

[FN3]. See North America Is the Leading Region for Internet Users According to the Computer Industry Almanac, PR Newswire, Aug. 17, 1999, available in LEXIS, News Library, PR Newswire File.

[FN4]. See id. ("North America will remain the leading region for Internet users until at least 2005. It will grow from about 83 million Internet users at year-end 1998 to nearly 230 million by year-end 2005. West Europe is growing faster than North America and will be a close second by 2005 with over 202 million Internet users. The Asia-Pacific region is growing even faster and will have over 170 million Internet users in 2005.").

[FN5]. See Miro Kazakoff, The Ethics of Piracy Internet: The High Seas for Illegal Downloading, Hartford Courant, Aug. 28, 1997, at E1; see also Teddy C. Kim, Note, Taming the Electronic Frontier: Software Copyright Protection in the Wake of United States v. LaMacchia, 80 Minn. L. Rev. 1255, 1266 (1996) ( "Because of the Internet's global breadth, and the ease with which it is navigated, a perpetrator can be very remote from the actual 'crime scene." ').

[FN6]. See S. Rep. No. 105-190, at 8 (1998).

[FN7]. See John G. Spooner, Wizards to Thwart Pirates: Microsoft Registration Wizard for Office 2000 Premium Edition, PC Week, Dec. 14, 1998, available in 1998 WL 25003887 (noting that worldwide losses from piracy in 1995, 1996, and 1997 cost the software industry $13.3 billion, $11.2 billion, and $11.4 billion respectively).

[FN8]. See 141 Cong. Rec. S14,550 (daily ed. Sept. 28, 1995) (statement of Sen. Hatch) (discussing the need to enact "rules of the road" to protect copyrighted works traveling on the Information Superhighway). See generally NII White Paper, supra note 22 (suggesting clarification and amendment of the Copyright Act of 1976 to ensure that the NII reaches its full potential).

[FN9]. See NII White Paper, supra note 22, at 1.

[FN10]. See generally NII White Paper, supra note 22 (report prepared by the Clinton administration to address intellectual property rights in light of new technologies, particularly the Internet).

[FN11]. See NII White Paper, supra note 22, at 17.

[FN12]. Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. § § 101-1101 (1976)).

[FN13]. NII White Paper, supra note 22, at 212.

[FN14]. Pub. L. No. 105-147, 111 Stat. 2678 (codified as amended in scattered sections of 17 U.S.C. and 18 U.S.C.).

[FN15]. Pub. L. No. 105-304, 112 Stat. 2860 (codified as amended in scattered sections of 17 U.S.C.).

[FN16]. See infra Part V.

[FN17]. See ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996).

[FN18]. A "network" is a group of computers linked together in order to exchange files and messages (and to share equipment such as printers). See id. at 830-31.

[FN19]. See id. at 831.

[FN20]. See id.

[FN21]. See Needham J. Boddie, II et al., A Review of Copyright and the Internet, 20 Campbell L. Rev. 193, 195 (1998).

[FN22]. See ACLU, 929 F. Supp. at 831.

[FN23]. See id. at 832.

[FN24]. See id.

[FN25]. See id.

[FN26]. This standardized set of protocols is also known as "Internet Protocols." See Boddie et al., supra note 2121, at 195-96.

[FN27]. See id. at 196 .

[FN28]. See id.

[FN29]. See ACLU, 929 F. Supp. at 831.

[FN30]. Cf. id. at 832 (asserting that it is not "technically feasible for a single entity to control all of the information conveyed on the Internet").

[FN31]. See Shira Perlmutter, Future Directions in International Copyright, 16 Cardozo Arts & Ent. L.J. 369, 370-71 (1998). However, Perlmutter notes that while many countries have individual approaches to various issues, "a tremendous amount of harmonization has taken place on the core concepts of copyright." Id. at 370.

[FN32]. See id. at 372-73. International trade agreements also sometimes incorporate copyright provisions as a component. See id. at 373.

[FN33]. See ACLU, 929 F. Supp. at 832.

[FN34]. A device used to connect a personal computer over a telephone line to a larger computer or computer network. See id.

[FN35]. See id.

[FN36]. See id. at 833.

[FN37]. See id.

[FN38]. Such as news services, chat rooms, bulletin boards, and online shopping services.

[FN39]. See ACLU, 929 F. Supp. at 833.

[FN40]. See id. at 832 .

[FN41]. See id.

[FN42]. See id. at 832-33.

[FN43]. See id. at 833.

[FN44]. See id. at 833-34.

[FN45]. See id. at 834.

[FN46]. See id.

[FN47]. See id.

[FN48]. E-mail is comparable to regular postal mail, but far more efficient; one need only address a message to one or more people and then transmit it electronically over the Internet. See id.

[FN49]. Listservs are automatic mailing list services which forward messages sent by subscribers (usually on a particular topic) to the rest of the subscribers in the group. See id.

[FN50]. Newsgroups, such as USENET, are distributed message databases which present open discussions and exchanges on particular topics. See id.

[FN51]. IRC is a "global chat network," made up of a series of chat servers all over the world, which allows multiple users to type messages to each other, or "chat," in real time. See Andy Patrizio, Despite Stricter Laws, Internet Piracy Flourishes, CMP Techwire, Apr. 7, 1998, available in 1998 WL 9295014. Some commercial ISPs and Web sites offer their own version of IRC, called "chat rooms," which allow users to converse in private or in public forums set aside for specific discussion. See Boddie et al., supra note 2121, at 199-200.

[FN52]. Telnet allows users to remotely access and control computers that are physically located elsewhere. See id. at 200.

[FN53]. FTP is the protocol used to list the names of computer files located on a host computer, or "server," so that a user may easily download files from that server onto his or her own local computer. See ACLU, 929 F. Supp. at 835 .

[FN54]. See id. at 836.

[FN55]. See Jerome Woody, Computer Lovers Should Beware of Net Piracy, Syracuse Herald-Journal, Oct. 1, 1998, at 20, available in 1998 WL 4382323.

[FN56]. See Patrizio, supra note 5151. Some software pirates even use programs called "bots," which automatically advertise and receive orders for pirated software on IRC channels. See id.

[FN57]. See Kazakoff, supra note 55, at E1.

[FN58]. See supra note 5353.

[FN59]. See ACLU v. Reno, 929 F. Supp. 824, 836 (E.D. Pa. 1996).

[FN60]. See Boddie et al., supra note 2121, at 201.

[FN61]. See id.

[FN62]. ACLU, 929 F. Supp. at 836.

[FN63]. Such as Netscape's Navigator or Microsoft's Internet Explorer.

[FN64]. See ACLU, 929 F. Supp. at 836.

[FN65]. See id.

[FN66]. See id.

[FN67]. See id. at 838.

[FN68]. See id. However, many national governments have restricted the use of pornography on host computers located within their national borders. See Robyn Forman Pollack, Comment, Creating the Standards of a Global Community: Regulating Pornography on the Internet - An International Concern, 10 Temp. Int'l & Comp. L.J. 467, 488 (1996).

[FN69]. Such as Yahoo, Lycos, Infoseek, Altavista, or HotBot.

[FN70]. See ACLU, 929 F. Supp. at 837.

[FN71]. See the "Findings of Fact" section in ACLU, 929 F. Supp. at 830- 49, for more background information on the Internet.

[FN72]. "Piracy" is the term popularly used to describe the unauthorized duplication of software programs, sound recordings, films, etc. See Mary Jane Saunders, Criminal Copyright Infringement and the Copyright Felony Act, 71 Denv. U. L. Rev. 671, 671 n.2 (1994).

[FN73]. See Patrizio, supra note 5151. On October 1, 1999, the author of this article conducted a query on Altavista, a comprehensive search engine, which found more than 2 million Web sites that contain the word "warez"--slang for pirated software.

[FN74]. See Saunders, supra note 7272, at 678.

[FN75]. "Warez" is a slang word for software that has been stripped of its copy protection and made available on the Internet for downloading. See Business/Edge: Learning Computer Language, Star-Ledger (Newark, N.J.), Oct. 5, 1998, at O25.

[FN76]. IRC channels are a veritable black market for pirates to advertise Web sites linked to pirated software. See Patrizio, supra note 5151.

[FN77]. See Greg Short, Combatting Software Piracy: Can Felony Penalties for Copyright Infringement Curtail the Copying of Computer Software?, 10 Santa Clara Computer & High Tech. L.J. 221, 222 (1994). Of the three categories, some commentators consider corporate pirates to be the most unmanageable type of pirate. See id.; see also Amy Cortese, A Felonious Crime: Software Copyright Infringement, Information Week, Sept. 14, 1992, at 14 (quoting Ron Palenski, general counsel for Information Technology Association of America, commenting that software piracy is mostly within corporations).

[FN78]. See Woody, supra note 5555, at 20. For instance, the author has seen programs such as Adobe Photoshop, a photographic imaging program which normally retails at over $500, offered on IRC channels for only $10.

[FN79]. See id.

[FN80]. See id.

[FN81]. See Kim, supra note 55, at 1264-65. Pirates and users alike have no compunctions about software piracy. "It becomes a hobby. It becomes a game," says Peter Beruk of the Software Publishers Association, discussing college-age pirates. "It almost becomes a bragging thing." Kazakoff, supra note 55, at E1.

[FN82]. Anonymous remailers are remote computers that intercept an e-mail transmission and resend it to the intended recipient stripped of the sender's e-mail address. Countries with strict privacy laws, such as Finland, commonly host such computers. See Noah Levine, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 Colum. L. Rev. 1526, 1530-37 (1996) (discussing various problems caused by anonymous remailers and countervailing privacy considerations).

[FN83]. See Steven Levy, How to Launder Your E-Mail, Wired, June 1994, at 50.

[FN84]. See Steven S. Ross, Public Relations in Cyberspace, Pub. Rel. J., May 1995, at 36-37; see also Marjorie Lambert, Information Highway Patrol Pirates, Peeping Toms and Bandits Are Just a Few of the Criminals Who Lurk on the Internet, Sun-Sentinel (Ft. Lauderdale, Fla.), May 28, 1995, at 1G (discussing how when "shielded by anonymity, computer users may stalk others electronically, send obscene or offensive material to unwilling recipients or hack into computer files to gain confidential information or alter records").

[FN85]. See Joshua Quittner, Automata Non Grata, Wired, Apr. 1995, at 119- 21 (Author notes the ease with which pirates can assume other people's electronic identities. One expert commented that "'this kind of thing is happening all the time these days," ' and "'it's getting to be a real nuisance." ').

[FN86]. See supra note 5353.

[FN87]. See Marc S. Friedman & Kristin Bissinger, "Infojacking": Crimes on the Information Superhighway!, 507 PLI/Pat 1107, 1121 (1998).

[FN88]. See Short, supra note 7777, at 221 (Author notes that "[b]y 1990, software piracy in the United States accounted for approximately $2.4 billion in lost income per year for software manufacturers, up from approximately $500 million per year" in 1980. "Worldwide, the losses are estimated to have been $10-12 billion in 1990.").

[FN89]. Also known as the "Software Police," the SPA's approach towards fighting software piracy is to identify suspect pirates or companies and, with the use of a court order, search for and seize any copies of unlicensed software. See id. at 228.

[FN90]. See Cybersleuths track down pirates abusing copyrights, Dallas Morning News, May 19, 1997, at 1D.

[FN91]. See John Borland, SPA Sues Net Pirates, CMP TechWire, Oct. 23, 1997, available in 1997 WL 18041523; see also Kim, supra note 55, at 1270 (noting that Europe accounts for 39% of the worldwide losses, followed by Asia at 29% and the United States and Canada at 21%; in China, 98% of the software in use is pirated).

[FN92]. See Timothy D. Howell, Comment, Intellectual Property Pirates: Congress Raises the Stakes in the Modern Battle to Protect Copyrights and Safeguard the United States Economy, 27 St. Mary's L.J. 613, 621 (1996).

[FN93]. See Clinton Statement Regarding the Digital Millennium Copyright Act, U.S. Newswire, Oct. 12, 1998, available in 1998 WL 13606322 (stating that "American copyright-based industries ... contribute more than $60 billion annually to the balance of U.S. trade"); see also NII White Paper, supra note 22, at 10 (stating that "[m]ore than half of the U.S. work force is in information-based jobs, and the telecommunications and information sector is growing faster than any other sector of the U.S. economy").

[FN94]. See 136 Cong. Rec. H13316 (daily ed. Oct. 27, 1990) (statement of Rep. Moorhead) (stating that lost sales due to copyright infringement worldwide could be "translated into 300,000 to 600,000 jobs lost for the American worker").

[FN95]. See Vicky Gerl Neumeyer, Comment, Software Copyright Law: The Enforceability Sham, 35 Loy. L. Rev. 485, 485 (1989).

[FN96]. Short, supra note 7777, at 223-24.

[FN97]. U.S. Const. art. I, § 8, cl. 8, also known as the "Copyright Clause," states: "Congress shall have Power ... [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

[FN98]. Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. § § 101-1101 (1976)).

[FN99]. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.01(A), at 2-7 (1999) [hereinafter Nimmer on Copyright].

[FN100]. See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975); see also Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 711 (2d Cir. 1992) (discussing how "[t]he interest of the copyright law is not in simply conferring a monopoly on industrious persons, but in advancing the public welfare through rewarding artistic creativity, in a manner that permits the free use and development of non-protectable ideas and processes").

[FN101]. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984); see also Mazer v. Stein, 347 U.S. 201, 219 (1954) ("[E] ncouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts." ').

[FN102]. Computer Assocs., 982 F.2d at 696.

[FN103]. Id.

[FN104]. Pub. L. No. 60-349, 35 Stat. 1075, 1082 (1909).

[FN105]. U.S. Const. art. I, § 8, cl. 8; see also supra notes 9999-103103 and accompanying text.

[FN106]. Pub. L. No. 96-517, 94 Stat. 3015 (1980).

[FN107]. See id. ch. 38, sec. 211, § 10(a), 94 Stat. at 3028. A "computer program" is defined as "a set of statements or instructions to be used directly or indirectly in a computer in order