Date: 11 Oct 11 16:29: 34
From: Moderators (tk0jut2@mvs.cso.niu.edu)
Subject: File 2--Senate Bill 893 (Anti-Piracy) Passes

The Senate Thursday night passed a series of Bills that included
S 893, anti-piracy legislation, that criminalizes and creates severe
sentences for anyone convicted under the statute.

The law's language essentially makes it a crime to make copies of
unauthorized software, whether by backup or for distribution on a BBS.
Two provisions seem especially questionable: (1) The provision that
criminalizes reproducing or distributing at least 50 copies of
copyright-infringing software in a 180 day period; and (2) The
provision that criminalizes reproduction or distribution of more than
10 but less than 50 copies of one or more offending programs with a
value of $2,500 or more.  Depending on the nature of an offense or
whether it is a second offense, a violator could face a prison term of
up to 10 years.  The law seems to target the "hobby pirate" rather
than professional bootleggers. As written, it seems that a user who
possesses an unauthorized copy of Word Perfect 5.1 and backs it up
once every two weeks to tape would violate the "more than ten copies"
provision. The "cost" would presumably exceed the $2,500 threshold.
Or, If a user downloaded 11 different word processing programs from a
BBS to test them before purchase, there is a risk of federal
prosecution even if one of them is purchased.

As with all new laws involving new technology, the scope and nuances
will be worked out in the courts over time. But, this may not prevent
abuse of the law by prosecutors and investigators.  There is little
reason to trust in the good faith of prosecutors in alleged crimes
involving new technology (as Sun Devil and other cases demonstrate).
It is hardly unreasonable to create a scenario where one's computer
equipment is confiscated for "evidence" or for a minor offense and
then, if several unauthorized programs are found, to pursue more
serious charges.  The wording of the law seems to create considerable
latitude for abuse by law enforcement and for excessive prosecution.
We would guess that, under the new law, a substantial portion of the
computer community has just become criminals.

The law also raises trickier questions.  If the sysop of a small
neighborhood BBS has a program on the board, such as Windows 3.1, and
15 people download it, would this make the sysop vulnerable? Has the
sysop actually distributed that single copy? What if a single program
were distributed in a single post over the nets and received by 1,000
people? How about the case where a company's legitimate program, with
serial number intact, were spread to 50 other people by an employee
and then traced back to the legitimate purchaser?  Even if the answers
are benign, the potential for over-zealous use of the law risks havoc
for those who, like Steve Jackson Games, ultimately must prove their
innocence to clear their name and have their equipment returned.

The law will likely to little to stifle the bootleggers--those who
profit from resale of unauthorized software.  The relatively low
threshold of offense clearly seems to target the casual, "small-time"
computer user and pirate board.  It is simply a bad law.

Perhaps it is not coincidental that the Bill's sponsor, Orrin Hatch of
Utah, is from the same state as Word Perfect. It would be convenient
to blame Congress, the SPA, large software manufacturers, or groups
such as the EFF for not taking a strong (or any) stand. In this case,
however, the computer community has only itself to blame. Discussions
with two Senators' aides indicated that IF THEY HAD RECEIVED SOME
REASONABLE RATIONALE DURING DELIBERATIONS, they would have been more
likely to oppose the Bill for further consideration. Senate sources
indicated that the bulk of the opposition came at the 11th hour, too
late to be of significant impact in a highly charged election year.
An aide to Senator Simon, who is normally highly sensitive to
potentially abusive legislation, indicated that the Senator did not
receive a single word of opposition to the Bill until our own call
about two hours prior to the final vote.

If groups like the EFF and CPSR have done nothing else, they have
demonstrated the value of and need for developing a quasi-organized
political constituency for cyber issues. Many of us (CuD included)
assumed that "George would do it." We goofed.  If there is any lesson
to be taken from S 893, it is that we should all pay closer attention
to legislation that affects the bulk of the cyber community and not
simply sit back when we have the opportunity to provide input.

The Bill below *IS NOT* the final version, and we are told that there
was some minor last minute changes in wording to reconcile House and
Senate versions. For those wondering if the bill will affect them, we
include in file #4 a "piracy quiz." Take it, then re-read S 893.

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