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6 January 1998
Excerpted from United States Sentencing
Commission request for comment on revised sentencing guidelines of 6 January
1998
...
Legislative Amendments
Electronic Copyright Infringement
9. Issue for Comment
The No Electronic Theft Act, Public Law 105-147, was recently
enacted to provide a statutory basis to prosecute and punish persons
who, without authorization and without realizing financial gain or
commercial advantage, electronically access copyrighted materials or
encourage others to do so. The Act includes a directive to the
Commission to (A) ensure that the applicable guideline range for a
crime committed against intellectual property (including offenses set
forth at section 506(a) of title 17, United States Code, and sections
2319, 2319A, and 2320 of title 18, United States Code) is sufficiently
stringent to deter such a crime; and (B) ensure that the guidelines
provide for consideration of the retail value and quantity of the items
with respect to which the crime against intellectual property was
committed.
Each of the statutes mentioned in the congressional directive
currently are referenced to Sec. 2B5.3 (Criminal Infringement of
Copyright or Trademark). That guideline provides for incrementally
greater punishment when the retail value of the infringing items
exceeded $2,000. However, when copyrighted materials are infringed upon
by electronic means, there is no ``infringing item'', as would be the
case with counterfeited goods. Therefore, the Commission must determine
how to value the infringed upon items in order to implement the
congressional directive to take into account the retail value and
quantity of the items with respect to which the offense was
committed. The Commission invites comment on how Sec. 2B5.3 (Criminal
Infringement of Copyright or Trademark) should be amended to best
effectuate the congressional directives.
An approach suggested by the Department of Justice is set forth
below. The Commission invites comment on this and alternative
proposals.
Department of Justice Proposed Amendments to Sec. 2B5.3:
The text of Sec. 2B5.3 is amended to read as follows: ``(a) Base
offense level: [6]
(b) Specific Offense Characteristic
(1) If the loss to the copyright or trademark exceeded $2,000,
increase by the corresponding number of levels from the table in
Sec. 2F1.1 (Fraud and Deceit).''.
The Commentary to Sec. 2B5.3 captioned ``Application Note'' is
amended in Note 1 by striking:
`` `Infringing items' means the items that violate the copyright or
trademark laws (not the legitimate items that are infringed upon).'',
and inserting:
``A court may calculate the `loss to the copyright or trademark
owner' in any reasonable manner. In determining `loss to the copyright
or trademark owner,' the court may consider lost profits, the value of
the infringed upon items, the value of the infringing items, the injury
to the copyright or trademark owner's reputation, and other associated
harms.''.
The Commentary to Sec. 2B5.3 captioned ``Application Note'' is
amended by striking ``Note'' and inserting ``Notes''; and by adding at
the end the following new note:
``2. In some cases, the calculable loss to the victim understates
the true harm caused by the offense. For example, a defendant may post
copyrighted material to an electronic bulletin board or similar online
facility, making it easy for others to illegally obtain and further
distribute the material. In such an instance, it may not be possible to
determine or even estimate how many copies were downloaded, or how much
damage the defendant's conduct ultimately caused. In such cases, an
upward departure may be warranted. See Chapter Five, Part K
(Departures).''.
The Commentary to Sec. 2B5.3 captioned ``Background'' is amended in
the first paragraph by striking ``value of the infringing items'' and
inserting ``loss to the copyright or trademark owner''; and by striking
``loss or''.
[End excerpt]