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Internet Software Piracy Is Not Fair Use

By Judith L. Grubner

In a decision interpreting the criminal offenses provision of the Copyright Act (17 U.S.C. '506), the Seventh Circuit Court of Appeals has held that a criminal conspiracy to pirate software did not constitute “fair use” simply because the Web site to access the software was operated by a university professor. U.S. v. Slater, 348 F.3d 666 (7th Cir. 2003). The Seventh Circuit found “preposterous” the defendant's argument that Internet piracy could become authorized under the fair use doctrine by using a professor as a Web site operator.

The case arose from the indictment for conspiracy to commit copyright infringement of Jason Slater and Christian Morley, members of an organization called “Pirates With Attitudes” (“PWA”), a group dedicated to unauthorized Internet dissemination of copyrighted software. The FBI disbanded PWA and in 2000, Slater, Morley and 15 other PWA members were indicted under 17 U.S.C. '506(a)(2), 18 U.S.C. '371 and 18 U.S.C. '2319(c)(1). Slater pled guilty, but Morley stood trial and was convicted by a jury. On appeal, the sole issues were: 1) whether the jury should have been instructed on the fair use doctrine and 2) whether the U.S. District Court for the Northern District of Illinois properly evaluated the monetary value of the loss for the purpose of applying the U.S. Sentencing Guidelines (“U.S.S.G.”).

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