Research Paper on Exploring the Cyber Environment: What are the Rules?

Introduction

When one buys a product or good from a shop, they have the right to do what they wish to do with it so long as it is within the law. For example, one can give it to their family, friend or sell it in case they have no use for it. It is, however, different when it comes to exploring the cyber environment. In a cyber-environment, one does not purchase something materialistic that you can sell or give away when you have no more use for it. The rules, therefore, change when it comes to who uses a particular product, how to distribute the product and share it. The no electronic theft act of 1997 changed how things are done when it comes to software, music, movies and anything that is considered infringement of copyright products.

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Before the passing of the bill, people who copied and distributed music and software through the internet did not face charges as long as they did not profit from such an activity. However, the NET act criminalizes even those who do not benefit from copyrighting content over the internet. The USA government enacted no electronic theft (NET) act in 1997 to enable the prosecution of copyright violation on the internet (Goldman, 2003). I agree with the law as it protects those that work hard to produce original content from those who wait to produce and distribute the work to gain profit from it.

The NET Act is valid in situations where an individual runs a file-sharing application when the outgoing transfers are enabled, transferring files via IRC. It is also correct when hosting data on a web account and other ways of making copyright material accessible over the internet (Goldman, 2003). The NET act states that downloading or distributing full copies of copyrighted material for entertainment or personal use without permission from the copyright owner is against the law.

Background Information

The copyright act covers both criminal as well as civil liability for actions of copyright infringement. In chapter 5 of the bill, it states that violation is a crime only when it is done willfully and for purposes of private gain or commercial advantage. In the Act, the penalties for breach of the bill are well stated. If the infringer makes ten or more copies of one or more copyrighted jobs in 180 days, with a value of $2500, the crime is a felony punishable by a fine of up to $250000 or up-to five years imprisonment (Grosso, 2000). For organizations, the punishment is up to $500000. The penalty for cases not meeting this threshold is imprisonment for one year or a fine of up to $25000. For organizations, the punishment is up to $100000 (Grosso, 2000). The penalty is higher for repeat offenders. They can face a sentence of up to ten years in prison.

The development of no electronic theft law began with the first criminal infringement establishment. The breach was required to be willful and for profit. It was first developed in 1897 by congress (Grosso, 2000). In 1909 the copyright act was revised where it maintained the profit element. In 1976, it was elaborated further to read that one would be prosecuted if found guilty of using copyrighted materials for gainful purposes, either commercially or privately(Grosso, 2000). Congress, however, failed to explain the changes which prompted the court to point out that it was similar to the previous one for profit. They also added the aspect of infringers who attempted to make a profit but failed.

Several causes led to the development of the no electronic theft act. The first case is that of the United States vs cross, Richard Denny and Diana Fleek. A jury convicted the three on counts of conspiring to willfully violate the copyrights of pictures for commercial purposes private financial gain. The second charge was for criminal infringement on violation of copyright law. Cross was sentenced five years of incarceration for the first count and two years for the second count. He was also asked to undergo a study by the bureau of prison. Denny was asked to serve sixty days in jail and the rest of the sentence suspended. He had been sentenced to two years of incarceration on the first charges and one year on count two. He was also fined $10000. Fleek was sentenced for one year of imprisonment for count one and one year on count two. Her sentence was then suspended, and she was put into probation for one year. She was asked to serve a work release institution for sixty days.

The other case was that of United States vs Moore in 1979 (Duggan, 2015). Moore challenged the court after he was convicted for infringement of copyright laws against the sound recording. He contended that the evidence produced in the court was not enough to sustain his conviction. He had been charged for copyright infringement of ten counts (Duggan, 2015). The evidence provided at the court showed that he had purchased large spools of eight-track recording tape. It occurred after the billboard magazines had advertised other distributors in their magazine. Each recording tape contained approximately twenty recorded songs.

The third case that led to the development of the 1997 no electronic theft is that of David LaMacchia vs the United States. The law came to be after an unsuccessful prosecution in 1994 of a student by the name David LaMacchia (U.S.www.copyright.gov, 2006). The Massachusetts Institute of Technology student was allegedly prosecuted for facilitating massive copyright infringement. He was doing it as a hobby with no intention of profiting from it. The court dismissed the case as the laws by then did not cover non-commercial infringement. The court proposed that congress develop an act that could cover non-commercial infringement as a crime.

The David LaMacchia vs the United States showed that the then Act contained a loophole. The lack of penalty for those who committed copyright infringement willingly with no intentions of commercial gain or profit was a significant loophole that needed to be addressed. David had created an electronic bulletin board that allowed consumers to upload as well as download commercial software copies (U.S.www.copyright.gov, 2006). The copyright owners lost millions of dollars through illegal copying. However, LaMachia was found not guilty as he lacked a commercial motive. The court then asked the congress to address the dilemma and seal the loophole. The congress, therefore, added the element of barter in the copyright infringement action. Barter refers to the situation where copies are produced illegally and traded for not only money but also other valuable items such as other copyrighted works (Goldman, 2003). Criminal infringement was redefined to willful infringement of material using electronic means that leads to a significant commercial effect even though it lacks a commercial motive.

Inadequacies of The No Electronic Theft Act Of 1997

The Act contains several deficiencies that need addressing. First, the definition of financial gain in the Act is not satisfying. The Act defines that for one to be charged with copyright infringement, they should have acted willfully and for commercial advantage (Bernstein, 2001). The definition of financial gain in the Act does not clarify whether the term includes receipts of other copyrighted works or just things of value. This definition is inadequate as it does not ensure that criminal liability will cover those copies that were sold for other valuable benefits and not just money. It leaves copyright owners vulnerable to piracy.

Over the years, Internet piracy has grown with the development of new and better technology. It has made it easier for copyright infringers to produce copies of high quality from copyrighted works. It makes copyright owners lose a lot of money in the process. Technology allows copyright infringers to make perfect copies that cannot be detected with little investment (Bernstein, 2001). As it gets easier to distribute copyright materials, it becomes easier for even those with no commercial motive cause a lot of damage to the copyright owners. There have been cases where resentful former employees, internet users and unhappy customers have caused commercial harm without gaining any financial advantage from the privacy itself (Bernstein, 2001). It gets hard for such offenders to be prosecuted as there is no practical way to criminalize their actions.

Adequacies of the No Electronic Theft Act Of 1997

The NET act contains some adequacies that need to be recognized. The first adequacy of the Act is, it expanded the copyright act to include the kind of punishment or penalty that those who infringe the Act will face (U.S.www.copyright.gov, 2006). The Act further elaborated that there will be a penalty of at least one year and an additional fine resulting from infringements of $1000 or more. For offences of or beyond $2500, the penalty includes incarceration of up to three years. Additionally, repeat offenders shall be imprisoned for up to ten years.

The second adequacy of the Act is that it criminalized the distribution and reproduction of copyrighted work within 180 days with a retail of up to $1000 (U.S.www.copyright.gov, 2006). The Act also clarifies that the evidence of distribution or reproduction of copyright material does not indicate willfulness. The Act also allows the victims of copyright violation to provide victim impact statements. The Act also allowed the American prosecuting commission to adjust its prosecution guidelines. The adjustment was that criminal copyright infringers should face stringent enough to reflect on the infringed things, quantity and retail value to deter the crime.

The Act also addressed some sentencing recommendations. The no electronic theft act prosecution now specifies that there must be eight levels of base offence. It also states that infringements of over $5000 must receive an increased pursuant to a table while those between $2000 and $5000 and increase of one level (U.S.www.copyright.gov, 2006). It specifies that importation, manufacturing and uploading of infringing objects offenses should receive a two-level deduction but should not be less than eight. Upward adjustments can be made in cases where the sentencing guidelines understate the seriousness of the offenses. The Act also clarified that retail value should be calculated using the infringing object's value. However, the infringed item value can be used where the infringed item is equivalent or identical to the infringed object. It can also be used where it is difficult to use the infringing object's retail value without prolonging or complicating the proceedings.

Proposed Changes

Several amendments can be done to the law to improve it. The first change that can be done to the Act is to allow organized opposition. Organized opposition means that witnesses testifying about the Act in a court of law should raise serious concerns about the case. The Act currently is too broad that it sweeps away any concerns brought about by witnesses (Duggan, 2015). Several challenges also face the Act. A proper channel for locating internet pirates should be established to ensure that copyright owners do not suffer losses from the pirates. There is also a need to develop a proper way to calculate losses encountered by copyright owners after there is an infringement of the copyrights. It is challenging to estimate the exact number of copies made by violators online. It makes it hard to compensate the copyright owners. Another change that should be introduced is for the government to create an agency to deal with the copyright violators; the responsibility of enforcing the piracy crime is often left to the prosecutors. There is also a need to carry out regular internet savvy to understand the extent to which piracy is being practiced and to develop new ways to cub it. There is also a need to determine how Act enforcers should operate. For example,...