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