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The No Electronic Theft (NET) Act was enacted by Congress in 1997 to address the issue of internet copyright infringement. A person's works such as music, video games, and software programs released or shared through different media without the intent of financial benefit or commercial remuneration are a federal crime under this statute (Penney 1). Previously, people engaging in such copyright practices with no intent to benefit will be immune from criminal prosecution; but, with the passage of the act, such infringements of an electronic type bear liability of $250,000 or a three-year jail term. The essence of criminal copyright infringement is to carry out punitive measures on offenders who aim at misusing works authored by an individual where effort, time and creativity was put in as an investment, but they have no mechanism for preventing such infringements on their work. Under the NET act, works that are distributed or reproduced illegally within a period of 180 days carry a fine of up to $1000 (Moohr 9). The purpose for this by Congress was to cover persons with no intent on financial gain such as hackers and employees who were disgruntled.
Under the NET Act, infringements that had in the past only attracted a mere civil liability now are classified as federal crimes by changing the meaning of the phrase “financial gain.” This means that anything of value that had been interpreted as some form of benefit accrued to the defendant, such as receipt of copyrighted works, would now fall under this act. In addition, some aspect of criminal infringement did not change as there was the angle of willful action by the defendant as regards the infringement in question. This aspect brought about a difference between civil infringement and criminal infringement. In the same vein, the offense has to be an unlawful conduct by the infringing party which basically means that unless the conduct in question did not meet the criteria for civil infringement, it would not be sufficient to label it a crime.
The NET Act also brought clarity on the issue of retail value by changing the phrase to “total retail value,” which means that copyrighted material that was distributed or reproduced via electronic means would be part of the felony provisions. In other words, the NET Act was criminalizing the distribution or reproduction of copyrighted works over the Internet. Punitive measures for criminal infringement also changed under the NET Act. For infringements that had a value of more than $1000, a prison sentence of one year together with a fine will be imposed on the offender. Alternatively, infringements with a value of $2500 or more would attract a prison sentence of three years coupled with a fine. A prison sentence of up to six years will be imposed on a subsequent infringer who acted with the sole intention of obtaining financial or commercial gain from the activity.
With the NET Act, provision of some information serves as a basis for meting out sentences. This information, referred to as victim impact statements, can include the level of impact or damage caused by the infringement and the economic impact the activity has left on the victim. In addition, this act instructed the Sentencing Commission to ensure the procedures used in against a convicted defendant be strict enough to prevent future occurrences of the same. This would also take into consideration the retail value of the items as well as the quantity. (Haber 19)
Efficacy of the NET Act has been a bone of contention for a number of legislators primarily to do with the effect it’s had on piracy. To do this, Congress did their analyses based on data obtained from the International Planning and Research Corporation which stated that on the year 1996, before the passing of the act, revenue losses worldwide from piracy stood at a staggering $11 billion and increased to $12.2 billion in 1999 (Goldman 397). In the United States, these figures stood at around $2.4 billion in the year 1996 and shot to within $3.2 billion in 1999.
One of the hypotheses being said as being one of the reasons for the inefficacy of this act in bringing about a reduction in piracy online is the inadequacy in enforcement and penalties laid out. The low prosecution rates by the Department of Justice coupled with the unpredictability in enforcement has emboldened infringers. In addition, it is argued that the penalties are not that sufficient, this augmented with the unpredictable and lax Sentencing Guidelines (Eric Goldman 400).
Another aspect has to do with the supposed ignorance of the act by infringers. The Department of Justice aimed at deterring offenders with a few well-publicized prosecutions that bore little fruit. This clearly displayed the little or no knowledge that offenders possess. In addition, the low rates of prosecution due to lax enforcement has socialized infringers to ignore copyright laws. A major motivation for this has to do with the fact that anonymity afforded by these infringers of being one amongst millions carrying out such acts on a daily basis. Last but not least, the imprecise grouping of these infringers makes it harder for this act to accomplish its goals due to their differing behavioral characteristics.
To conclude, the act does little to reduce piracy due to the ambiguity which may curtail legitimate piracy but at a social cost does little to boost its efficacy. Copyright infringement policies that are sensible and can be respected by the average American due to their distinction between true criminals and the average citizen should be the way to go. Shotgun approaches by Congress aimed at bringing about a change in behavioral patterns in average Americans are desperate and adrift of what makes an effective law. Lastly, the impediment brought about by the willfulness of action which requires proof does not cure the problem of copyright infringement (Bernstein 334).
Moohr, Geraldine Szott. "The crime of copyright infringement: An inquiry based on morality, harm, and criminal theory." BUL Rev. 83 (2003): 731.
Goldman, Eric. "A road to no warez: The No Electronic Theft Act and criminal copyright infringement." Or. L. Rev. 82 (2003): 369.
Haber, Eldar. "The Criminal Copyright Gap." Stan. Tech. L. Rev. 18 (2014): 247.
Bernstein, Karen J. "The No Electronic Theft Act: The Music Industry's New Instrument in the Fight Against Internet Piracy." UCLA Ent. L. Rev. 7 (1999): 325.
Penney, Steven. "Crime, Copyright, & the Digital Age." (2004).
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