Last week I offered some thoughts on the Megaupload indictment from my perspective as a federal criminal practitioner. I have a couple more — one legal, one practical.
The Legal Issue: Is The DMCA Safe Harbor A Defense In A Criminal Case?
The Megaupload indictment brings federal criminal charges against the named indictments. Many people talking about the case seem to assume that the defendants can rely upon the safe harbor provisions of the Digital Millennium Copyright Act as a direct defense — that the defendants can say "Megaupload qualifies for the safe harbor under these provisions, and therefore we can't be guilty of a crime." I think this is incorrect — the defendants will be able to rely on the safe harbor provisions, but only as evidence of their intent, not as a full defense to the charges. Here's why.
I outlined the charges in my prior post. The charges rely either directly or (in the case of conspiracy, RICO, and money laundering) indirectly on two criminal copyright statutes — 17 U.S.C. § 506(a)(1)(A), which provides:
(a) Criminal Infringement. –
(1) In general. – Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18 . . . .
and the penalty provision, 18 U.S.C. § 2319(d)(2), which provides:
(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
So. Willfully infringing a copyright is a federal crime. What's willfully mean? If you asked the Ninth Circuit, for instance, they might say it means "voluntarily and intentionally," and perhaps even "in violation of a known legal duty."
The safe harbor provisions of the DMCA are found at 17 U.S.C. § 512. To generalize, they limit civil liability for several types of web sites found to host infringing material. For instance:
(c) Information Residing on Systems or Networks At Direction of
(1) In general. – A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for
injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider –
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Emphasis added by me. The safe harbor provision limits civil liability — money and injunctive and other relief — not criminal liability. Note also that the safe harbor provision does not purport to redefine what infringement is — it only offers immunity for civil liability for infringement. In other words, the safe harbor provision of the DMCA does not provide a defense that "we did not infringe because we took steps a, b, and c"; it provides a defense "we are not civilly liable for infringement because we took steps a, b, and c." The definition of infringement is not altered.
The upshot of this is that I believe that you can be criminally liable for copyright infringement under federal law, but civilly immune under the safe harbor provisions of the DMCA. That's a descriptive conclusion, not a statement about what the law ought to be.
However, even if they are not a direct defense, the safe harbor provisions are probably relevant to the assessment of a criminal defendant's intent — to the evaluation of whether infringement was done "willfully," not to mention the intent requirement of derivative crimes of conspiracy, RICO, and money laundering. The Megaupload defendants will probably argue that they were attempting, in good faith, to comply with the safe harbor provisions, and that they believed that in doing so they were protecting the copyright holders' rights as required by law, and therefore did not willfully infringe. If the government can prove that some of the defendants actually sent some of the communications set forth in the indictment, that intent argument will be a difficult one.
The Practical Issue: Can Federal Prosecutors Make a Serious Dent In Piracy Through Criminal Prosecution?
My next issue is practical and contextual. Many people reacting to the Megaupload indictments are suggesting that, with lobbying from the MPAA and the RIAA, federal prosecutors will begin to bring many cases against accused piracy sites where copyright holders have failed. Legally speaking, this is possible; practically speaking, it is highly unlikely that we will see more than the occasional "make an example" case or the very rare large-scale case like Megaupload. Here's why.
The United States Attorneys' Offices across the country prosecute about 95% of the U.S. Department of Justice's criminal cases. elaborate statistical tracking reveals the priorities of those offices:
So. You've got vast number of cases devoted to the ruinously expensive and pointless War on Drugs, tons of cases about immigration (mostly deported aliens with criminal records returning to the United States, or alien smuggling), violent crime (often bank robberies — prosecuted federally if the bank is FDIC insured — and gun and drug cases), and "white collar crime," meaning securities fraud and so forth. If you look at the statistics for each year, you'll see very few — if any — criminal copyright cases being prosecuted. The Department of Justice itself — or "Main Justice," if you're an AUSA — also has a Computer Crime and Intellectual Property Section. That section does prosecute cases across the country itself and in cooperation with local U.S. Attorney's offices. But it's tasked to address the entire universe of computer-related crimes, not just internet piracy. It goes for the big showy cases like Megaupload. Together, the total number of cases brought by the CCIPS and the various U.S. Attorneys Offices is quite modest, as these 2008 issue-specific statistics (the latest I could find) suggest. The CCIPS has a handful of prosecutors. The largest U.S. Attorney's Offices (say, Los Angeles and Manhattan) probably have two or three lawyers devoted to such cases for a part of their caseload. Most other offices don't have anyone specifically devoted to such cases.
Moreover, to understand how federal prosecutorial resources are allocated, you have to know how federal prosecutors work and think. Federal prosecutors have a competitive advantage over local prosecutors: a Department of Justice that allows, and expects, slow and painstaking grand jury investigations. To over-generalize, District Attorneys throw cases together quickly and play catch-up after charges have been brought, and Assistant U.S. Attorneys slowly build cases until they are as strong as they are likely to get. That's because, to continue generalizing, U.S. Attorneys are more adverse to losing a marginal case than District Attorneys, and there tends to be more pressure on DAs to indict quickly in the types of cases they bring. Therefore, typical federal investigations — especially white collar and complex ones — can take years, and can involve slowly flipping one witness against the next, bringing witness after witness before the grand jury to lock them in, sending subpoena after subpoena to third parties, until the prosecutors build their case. (Note that I am not suggesting that the result is more reliable.) This approach takes lots of attorney and investigator time and lots of resources.
So what? So, it's highly unlikely you will see a big push for many online piracy cases. The Department of Justice and U.S. Attorneys' Offices won't divert the necessary resources from the War on Drugs and the War on Terror and so forth to handle more piracy cases. Federal prosecutors probably won't change their culture to approach piracy cases like a production line rather than using their competitive advantage to build cases based on years-long elaborate investigations. Federal prosecution of online intellectual property violations will continue as it has — very occasional giant prosecutions like Megaupload in extreme cases, and very occasional small-fry prosecutions of people who have been, in effect, struck by federal lightening.
This is not to say that federal prosecution can't have a chilling impact on how the internet works. It can. Some would say it ought to. But if you're expecting a statistically significant flurry of cases, you're likely to be disappointed.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017