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The story that appears in our printed edition will almost surely be a little different, and we will replace this after the second half is printed. The first half can be read alone, too.
David M. LaMacchia '95 will be arraigned in federal court today on one count of conspiracy to commit wire fraud. LaMacchia is accused of using a pair Athena workstations to let Internet users distribute copyrighted software.
The case has prompted discussions, many taking place on the campus network or across the Internet, about the specific charges brought against LaMacchia and a range of wider legal issues which the case may influence.
Among the issues raised by the case are the rights and responsibilities of people who run electronic "bulletin boards" and gaps in the current copyright laws.
U.S. Attorney Donald K. Stern said, "In this new electronic environment it has become increasingly difficult to protect intellectual property rights. Therefore, the government views large scale cases of software piracy, whether for profit or not, as serious crimes and will devote such resources as are necessary to protect those rights."
While the case centers around the charge that the site run by LaMacchia was used to distribute more than $1 million in copyrighted software, the crime LaMacchia is charged with has little to do with software piracy, according to Mike Godwin, staff counsel to the Electronic Frontier Foundation.
The EFF was established in 1990 to protect basic constitutional rights as new communications technologies emerge. It sponsors legal cases where online civil liberties have been violated, but has not indicated that it will sponsor LaMacchia.
The criminal copyright laws cover cases where someone has made a profit from making illegal copies of software, but the government does not contend that LaMacchia made a profit. Instead the government charged LaMacchia under the more widely applicable wire fraud statute, Godwin said.
The case has implications for the larger questions of how the principles of freedom of speech and the press will be applied to speech on computer networks, according to LaMacchia's lawyer, Harvey A. Silverglate of Silverglate & Good.
The decision in the case could affect how existing laws are interpreted in criminal cases involving computer networks. The quickly changing technologies involved in the use of computer networks have outpaced the legal system's ability to develop case law, according to Professor Randall Davis, associate director of the Artificial Intelligence Laboratory.
The legal system's slow response is caused partly by the reliance on accumulating a body of case law about particular laws, Davis explained. The process of building up a series of judicial interpretations of how a statute applies to particular cases takes time.
Because there have been relatively few cases involving the rights of bulletin board users, the courts have had little opportunity to study how the law applies to cases like LaMacchia's.
"Fast-moving technology drives the legal system a bit batty," Davis said. "If you ask what are the formal legal rights and responsibilities of a computer bulletin board operator ... no one knows."
Specifically, the case could address "a gap that [the government] perceives in the law," Godwin said. "If we can make the wire fraud act address it, then we would have this seamless web of federal statutes addressing copyright violation. Otherwise you have this gap of people who are not doing it for profit."
Despite the government's perceived need for a precedent, Godwin does not think that LaMacchia would make a good case for testing how the wire fraud law will apply to electronic networks.
"I think criminal cases are generally lousy cases," Godwin said. "Let's face it. The average person on the street thinks that a person in a criminal case is guilty. It's much better to have a civil suit where your guy is presumed innocent."
Philip Greenspun G, a student at the AI Lab, helped establish a defense fund to raise money for LaMacchia. The fund, which takes no position on the merits of the case, was established because "an unfortunate side-effect of our common law system ... is that an individual involved in a constitutional test case is faced with the certainty of staggering legal bills as well as the possibility of imprisonment and fines," according to an electronic document provided by Greenspun.
According to a list of contributors maintained by Greenspun, the fund had raised nearly $6,000 by last night. A majority of the 31 named contributors are students at MIT.
Much of the public attention to LaMacchia's case has focused on whether or not LaMacchia is guilty of the charge made in the indictment. Dozens of Usenet messages and letters to The Boston Globe have tried to judge LaMacchia's alleged actions, based on the charges made by the government.
Speculation about the trial's results illustrates a common difference between the legal community and the lay community, particularly the kind of people you find at MIT, Davis explained.
"The legal system at large has an enormous faith in this case law process. If you ask about a novel situation, a legal person will say, `We don't know yet. Let's wait and see [what the courts decide].' ... Engineers and scientists will tend to argue about what is right. They say, `Let's figure this thing out,' " Davis said.
Godwin agreed, noting that scientists and engineers often lack a good understanding of the specific laws and precedents involved in a case. "Almost everything that a scientist or engineer at MIT says about the law is wrong,"Godwin said.
"People look at the alleged statement of the facts and say, `That's wrong.' We know it's wrong to trade in unlicensed software, but the proceeding is whether he violated a statute," Godwin said.
Particularly misleading in this case is the public misconception that the case is at heart a software piracy case, Silverglate explained.
The normal protection for copyright software does not apply in this case, Godwin explained. "One of the elements of the criminal copyright section of the code is that you have to be doing it for profit," Godwin said.
Silverglate explained, "Both sides in the case are proceeding, and will proceed, on the assumption that it is not lawful to make and distribute copies of copyrighted software without paying a licensing or royalty fee."
This is the end of the story that appeared in the April 15 issue.
The charge that was entered against LaMacchia also suggests that the government had trouble finding a specific law that applied to the case. "If you look at the underlying crime, it's not very easy to figure out how his alleged conduct relates to any of them," Godwin said.
"I think the government believes that it would be very hard to prove he was doing it for profit," Godwin said. Instead the government is using a "general purpose statute [that it turns to] whenever the more specific statutes don't seem to fit -- and one of them is wire fraud."
"It's relatively easy to make the wire fraud statutes fit the crime," Godwin continued.
Instead of proving that copyright violations were committed, the government will need to prove two things to win a conviction of the conspiracy charge, Godwin said. First, the government must show that LaMacchia worked with at least one other person to commit a crime. Second, the government must show that the crime the conspirators intended to commit meets all the standards for a wire fraud charge.
In a conspiracy case, the prosecution must prove that two or more people agreed to a plan to commit a crime. It must also prove that at least one person took actions towards carrying out that plan.
The prosecution must also show that the intended actions of the conspirators exactly match the standards for the crime the defendants are charged with conspiring to commit.
"If it's conspiracy to counterfeit, you have to map out all the elements of the underlying crime," Godwin said.
Proving the connection to the underlying crime may be difficult in this case, Godwin said. "Although the [wire fraud] statute is pretty broad, it's not so broad that it includes the defendant's alleged conduct," he said.
"Normally in other kinds of fraud crimes, there's some deception. Where's the fraud? Who did he lie to?" Godwin asked.
To commit a fraud, a person must misrepresent him or herself to another person. That misrepresentation must be to the detriment of the other person and the person committing the fraud must gain something of value, Godwin explained.
The indictment prints several files titled README that were placed on the site that LaMacchia ran; it charges that LaMacchia placed them using the aliases "John Gaunt" and "Grimjack." One file asked users to upload copyrighted software, including Microsoft Excel 5.0 and Wordperfect 6.0. Another warned users that if the existence of the distribution site became well known it could be "purged" by the "net.cops."
Godwin questioned how important the messages were to the case. "I'm not sure they are significant at all." The messages do not prove that LaMacchia deceived the service's users or that he profited from the distribution of the software, he said.
In a defense primer circulated earlier this week, Silverglate outlined how LaMacchia's case could affect future cases involving computer communications and freedom of speech.
Silverglate said the case has serious implications for people who operator computer bulletin boards. Godwin agreed with that characterization of the case.
"It's very clear that ... what they're trying to do is to create a conspiracy to make him liable for everyone who used that [File Service Protocol] site," Godwin said.
Silverglate questioned whether system operators, known as sysops, should be held responsible for everything that users do while logged onto their systems. The Constitution "has long conferred special protection on those engaged in the activity of maintaining communications media," Silverglate said.
Godwin suggested that an analogous case would be prosecuting the Boston Phoenix because some of its adult services advertisements were really fronts for prostitution. "The Phoenix has ads for escort services and massage parlors that the editors clearly know are fronts for illegal activities. You'd have to be stupid not to, but no one says that the Phoenix is aiding and abetting," he said.
The question is whether First Amendment protections "should apply fully to those in the print medium," Silverglate said. "Because the law has been slow in adjusting to the age of digital communications, there have been relatively few legal tests of the scope of First Amendment protections in cyberspace."
Though the law's slow pace in adjusting to changes in technology can be frustrating, Davis from the AI Lab cautions that the slow pace may be just what is needed.
"There's a long-term perspective that is particularly important, even though it's frustrating when dealing with a fast-moving technology. We should give that long-term perspective its due because people will likely have to live with the laws for a long time."
Copyright 1994 by The Tech. All rights reserved.
This story was published on Friday, April 15, 1994.
Volume 114, Number 21
The story began on page 1
and jumped to page 11.
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