Legislative Efficacy: No Electronic Theft Act
Eric Goldman
Marquette University Law School
eric.goldman@marquette.edu
http://eric_goldman.tripod.com
The NET Act
- Passed in 1997 in response to LaMacchia case
- Criminalized willful infringement of $1,000 retail value within 180 days
- Even if no commercial advantage or private financial gain
- Redefined financial gain to include the receipt of anything of value
The Act’s Goals
- Plug the “LaMacchia loophole”
- Shut down commercial-scale and self-aggrandizing pirates
- Curb piracy
- Especially Internet-mediated software piracy
- Shut down warez traders
Has the Act Succeeded?
- Eight publicized enforcement actions
- 7 of 8 involve warez traders
- Government has won plea bargains or convictions in all cases
- Jail sentences ranging up to 46 months
- But piracy has not abated
- IPRC Study
- Warez trading sites increased 900% from 1997 to 1999
- 80% have downloaded software without paying, and over 40% have burned CD instead of buying
Hypotheses about Efficacy
- Inadequate enforcement/penalties
- Ignorance of the law
- Socialization
- Act does not target warez trading well
- Ego-seeking
- Cyber-Robin Hoods
- Strong social bonds
Other Problems
- No definition of “willfulness”
- Majority v. minority views
- Is ignorance of the law or good faith belief of fair use a defense?
- The law may apply to facilitators
- Financial thresholds criminalize too many people
- You are a criminal infringer if you willfully infringe $5.56 per day
Conclusion
- The Act closed the LaMacchia loophole
- The individuals prosecuted under the Act comport with Congress’ intent
- But the law isn’t curbing piracy generally or by warez traders
- And the social costs from overcriminalization are not trivial