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Tresco Receives Three-Year Sentence

By Keith J. Winstein

NEWS EDITOR

Christopher S. Tresco, the economics department system administrator who illegally traded and served commercial software from the computers he ran, was sentenced on Aug. 16 to 33 months in federal prison.

Tresco pleaded guilty on May 28 to federal conspiracy charges that he collaborated for 18 months with fellow members of the “DrinkOrDie” software-trading group to commit criminal copyright infringement for private financial gain.

“What he was doing was working with the rest of the group to crack software security codes and then making them available for free on the Internet to all comers,” said Tresco’s attorney, Gary C. Crossen. “They apparently didn’t appreciate the significance of the copyright laws, and they thought it was a big challenge,” he said. “It’s completely wrong and he knows it.”

Tresco, who will start his prison term in November, could not be reached for comment.

Raids secure 14 convictions

DrinkOrDie attained notoriety by trading copies of sought-after programs weeks before their commercial releases and publishing them free of charge on the Internet, in violation of the federal Copyright Act.

The Justice Department’s “Operation Buccaneer,” which raided the MIT economics department as part of a synchronized global crackdown last December, has so far secured convictions or guilty pleas from 14 members of the group. Tresco appears to be the only member linked to MIT.

Some students lost a few weeks of work as a result of the raid, when a file server’s hard drive was inadvertently erased after federal agents had made a copy.

At the time, one economics graduate student, who spoke on condition of anonymity because he said he feared retaliation by the department, said no backups of the drive existed because Tresco, the server’s administrator, “didn’t want to have back-ups around of the stuff that he had illicitly on this drive in the first place.”

‘LaMacchia Law’ partly invoked

Because Tresco pleaded guilty to a conspiracy involving private financial gain, the case only tangentially invoked the 1997 No Electronic Theft (NET) Act, which criminalized large-scale copyright infringement irrespective of financial gain to the perpetrator.

The law was enacted in the wake of the government’s unsuccessful prosecution of former MIT student David M. LaMacchia ’95, after he ran a file-trading service on Student Center Athena workstations. Because LaMacchia did not profit from the service, the government was unable to prosecute him for criminal infringement.

Tresco, however, pleaded guilty to conspiring to infringe for financial gain. “The government’s theory of private gain, which is supported by case law, is that if he had available to him access to other copyrighted works ... as a result of the conspiracy, then that constitutes private financial gain,” Crossen said.

As a result, the NET Act was not important to Tresco’s case, Crossen said, even though it appears to have strengthened the government’s position by defining “financial gain” to include “the receipt of other copyrighted works.”

Penalty appears unlikely to deter

Whether the DrinkOrDie prison sentences will have a deterring effect on casual traders, as the music, movie, and software industries clearly hope, remains to be seen.

One student, who spoke on condition of anonymity because his own publicly-accessible music archive appears to constitute criminal copyright infringement, was nonchalant about Tresco’s sentence.

“I’m not particularly scared, because it seems to me like he only got busted because he was part of this pretty flamboyant group,” he said. “I know tons of people who have an archive like this ... Once they start going after individual college students, I’ll be more worried.”

The student suggested, however, that copyright holders have a low bar to strike fear into the hearts of casual infringers. “I deleted all my Metallica songs once Metallica [threatened] everybody on Napster,” he said.