The NET Act, Fair Use, and Willfulness-Is Congress Making a Scarecrow of the Law?
Heneghan, Brian P., The Journal of High Technology Law
"We must not make a scarecrow of the law, Setting it up to fear the birds of prey ..."--William Shakespeare--Measure for Measure (1)
On Tuesday, December 16, 1997, President Clinton signed H.R. 2265, the "No Electronic Theft (NET) Act" into law. (2) Big business entities including the software, record, and movie industries, lobbied Congress to pass the NET Act to close the "LaMacchia Loophole." (3) The NET Act closes the loophole by providing criminal penalties for certain copyright infringements, even when the infringer has no profit motive. (4) This statute reverses copyright policy that has been in existence for over a century by eliminating the requirement of commercial exploitation to trigger criminal penalties for infringement. (5) Moreover, the new law is both overbroad and dangerously vague. (6) It provides jail terms for a person who "willfully" infringes a copyrighted work or works which have a total retail value of as little as $1001. (7) The criminal penalties are out of proportion to the crime and ignore the inherent tension between the rights of copyright holders and copyright users.
Copyright does not exist merely to protect intellectual property. (8) As reflected in the Constitution, the ultimate purpose of copyright legislation is to foster the growth of learning and culture for the public welfare, and granting exclusive rights to "authors" is a means to that end. (9) The NET Act and many other recent pieces of legislation, such as the Sonny Bono Copyright Term Extension Act, have apparently lost sight of this purpose. (10) The proponents of the NET Act are almost exclusively large corporations who are justifiably focused on protecting their investments. (11) Unless criminal penalties are somehow necessary to benefit the public, the NET Act contravenes the original intention of copyright protection.
The Net Act enjoys strong support from the Software Publishers Association, U.S. Copyright Office, the Department of Justice, Adobe Software, Microsoft Corporation, the Recording Industry of America, and the Motion Picture Association of America. (12) A representative of each of these groups addressed the U.S. House of Representatives, speaking in favor of the Bill. (13) These speakers generally engaged in flag waving speeches that in some instances exaggerated the extent of the problem and ignored the real problems connected with imprisoning these non-violent offenders. (14) It is worth noting that no organizations representing musicians, artists, or authors addressed the House of Representatives concerning this bill. (15)
Critics of the NET Act are mostly concerned about three specific problems. The criminal penalty bar is set too low (16), the criminal penalties are triggered by the vague and undefined term of "willfulness," (17) and the effect of a fair use defense is unclear (18). These problems combine to create a law that could have a "chilling effect" upon free speech. (19) The NET Act has also been criticized as being over broad and jeopardizing people whose acts did not warrant criminal sanction. (20)
"Laws developed prior to consensus usually serve the already established few who can get them passed and not society as a whole."--John Perry Barlow (21)
PROBLEM BEING ADDRESSED
The same technological advances that have increased the potential value of copyrighted material have simultaneously threatened to make it worthless. (22) The ease of making "perfect" copies has driven the level of piracy to unprecedented heights. (23) Moreover, the distribution of copyrighted material via the Internet exponentially compounds the problem. (24) For example, the MP3 music file compression technology enables music fans to download songs from the Internet to their computers. (25) A high percentage of MP3 files on the Internet are unauthorized copies that generate no revenues for the recording industry or artists. (26) The film and software industries are also experiencing a dramatic increase in the pirating of their products. …