MIT Piracy Case Shows Technology Laws Lacking

In the wake of a decision by a federal judge to dismiss criminal charges against an MIT student accused of running one of the biggest computer piracy schemes ever, both Harvard and the federal government are reevaluating their rules on computer crimes.

David M. LaMacchia, a 21-year-old MIT senior majoring in electrical engineering and computer science, was charged last April with conspiracy to commit wire fraud for allegedly running a computer bulletin board that allowed people to make free copies of more than $1 million worth of copyrighted computer software.

LaMacchia, who is from Rockville, Md., operated an electronic bulletin board called Cynosure through his MIT computer. Because MIT's computer system is part of the Internet--a global data communications network--computer users all over the world were able to gain access to Cynosure.

From November of 1993 until MIT shut down the system in January of 1994, these users accessed the bulletin board to make free copies of commercial software programs, such as Microsoft Excel 5.0, WordPerfect 6.0 and Sim City 2000.

Using the aliases `Grimjack' and `John Gaunt,' LaMacchia organized the flow of software in and out of the system and warned its many anonymous users not to reveal the site's location on the Internet.

Donald K. Stern, the United States Attorney in Boston, said more than $1 million worth of illegally copied software passed through the system during the three months it was in operation, according to court documents.

LaMacchia was not accused of using the software himself or of profiting in any way from the trading, but prosecutors said his operation was one of the largest in world-wide electronic black market that trades billions of dollars worth of illegally copied software each year.

The April indictment was one of the government's first attempts to crack down on technology crimes, many of which have been launched by the growth of the Internet.

If convicted, LaMacchia would have faced time in jail and up to $250,000 in fines.

`New Wine, Old Bottle'

The case attempted to answer questions of whether existing laws could be used or were sufficient to prosecute new computer age crimes.

But the Federal judge ruled an emphatic no.

On December 29, District Judge Richard G. Stearns dismissed the criminal charges against LaMacchia, ruling that "what LaMacchia is alleged to have done is not criminal conduct under...the Copyright Act."

Although he dismissed the criminal charges, he was critical of LaMacchia's actions.

"If the indictment is to be believed," he said, "one might at best describe [LaMacchia's] actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values."

Stearns said that if LaMacchia was found guilty under the wire fraud statute, then many home computer users would also be engaging in criminal activity under that law by copy- ing commercial software.

Stearns ruled that "while the government'sobjective is a laudable one,...its interpretationof the wire fraud statute would serve tocriminalize the conduct of not only persons likeLaMacchia, but also the myriad of home computerusers who succumb to the temptation to copy even asingle software program for private use."

In his ruling, Stearns suggested that it is upto Congress to develop new laws for copyrightinfringement to cover Internet and computer ageissues. "This case presents the issue of whethernew wine can be poured into an old bottle," thejudge said.

"One can envision ways that the copyright lawcould be modified to permit such prosecution,"Stearns said, adding that the issue is one for thelegislature, not the Courts, to decide.

The Net Result

Following Stearns' ruling, LaMacchia issued astatement saying, "I am gratfied that JudgeStearns has confirmed that the indictment againstme does not allege conduct that is in factcriminal," the Boston Globe reported.

LaMacchia did not return repeated phone callsor e-mail messages seeking comment for thisarticle.

Daffodil Tyminski, a paralegal for the defensein LaMacchia's case, said that the MIT student waspleased with the case's outcome.

"He is very relieved and glad to be free of alot of the stress he's been under for the pastyear," Tyminski said.

Stern, the U.S. attorney, said in a statementthat he would consider appealing the case.

"The judge's thoughtful decision deservesfurther study before we decide whether to appealit to the first circuit," Stern said. Jeanne M.Kempthorne, the assistant U.S. attorney, said thatStearns "ordered the order of dismissal on January12, so we would have 30 days from that date" tofile an appeal.

But Harvey A. Silverglate, LaMacchia's lawyer,said he thought the prosecution should acceptStearns's decision.

"If I were the prosecutor, I would not appeal,"Silverglate said. "The judge's decision was verywell reasoned.

"However, the department of justice does notalways do things that make sense," he added.

Look to the Capital

A number of people close to the case said theyexpect the federal government to act on thisissue.

"The court's decision suggests that Congressshould revisit this area," Stern said in hisstatement. "I intend to raise with the Departmentof Justice whether it should file legislationexplicitly dealing with willfull, multipleinfringements of copyrighted software, in order toremove any uncertainties."

Silverglate also said he believed that Congresswould reconsider the laws surrounding copyrightinfringement.

"I believe that as a result of this case,Congress will amend the copyright statute, but Iam not sure Congress will decide to criminalizeprecisely what David LaMacchia did," Silverglatesaid.

"[LaMacchia] himself did not upload nordownload nor use any [copyrighted] computersoftware," Silverglate said. "Instead, allLaMacchia did was operate a computerized bulletinboard system."

"To Criminalize what he did would be likecriminalizing operating a phone system becausepeople using that system committed crimes,"Silverglate said.

Washington insiders said they believed thatlegislation regarding computer crimes will makeits way to the hill.

"We are currently considering what newlegislation would be needed if the decision inLaMacchia stands," said Scott Charney, chief ofthe computer crime unit in the criminal divisionof the Department of Justice.

Although the case is still pending because anappeal may be filed, Charney said the JusticeDepartment will examine the need for newlegislation in the meantime.

Such legislation, he said, would be proposedand drafted by the computer crime unit. "It wouldbe reviewed by the criminal division, theDepartment of Justice, and other federal agencies,and if approved by all, might be sent to the Hillfor Congressional action," Charney said.

Charney said the computer crime unit wasspecifically discussing an amendment to thecopyright infringement act, and hoped that thatlegislation would reach Congress before spring.

"But we are also looking at amending other lawsto address other types of computer crime," hesaid.

However, lack of interest in the Senate mayslow the progress of such legislation.

"I don't know whether anyone in Congress thinksthere needs to be any changes to address theproblem of computer piracy," said Joseph Duggan,the communications and policy director for theSenate Commerce Committee, which has jurisdictionover telecommunications issues.

The staff assistant for the subcommittee whichcontrols science and technology issues said shedid not know of any previous or forth-cominglegislation with regard to either computer piracyor the amendment of the copyright statute.

"At this point, I'm not aware of anylegislation that has been proposed this far in the104th Congress," said Dana Johnson, the staffassistant for the consumer affairs and tourismsubcommittee.

Closer to home, Harvard has not been activelylobbying on many computer technology issues.

Kevin Casey, the director of federal and staterelations, said, "I have not been involved inspecific issues regarding computer piracy."

Local Reactions

The reaction of those at Harvard who are morefamiliar with issues of technology was largelyfavorable to the idea of amending the legislation.

"I think [the LaMacchia case] shows that U.S.laws as they stand right now need to be updated totake into account some of the many technologicalissues that are around today," said Eugene E. Kim'96, the former president of the Harvard ComputerSociety (HCS).

John E. Stafford '96, the current president ofHCS and a Crimson editor, agreed with Kim'sassessment.

"I think it sent a pretty clear message to thefederal and state governments that the laws needto be rewritten to cover instances of this naturewhich are now possible because of the Internet,"Stafford said.

Richard B. Osterberg '96 said he believed thattechnology was moving at a faster pace than thelaws covering it.

"I think that what LaMacchia did was wrong,"Osterberg said, but the case "serves to illustratejust how far behind technology our legal systemis."

Franklin M. Steen, the director of the HarvardArts and Sciences Computer Services (HASCS), saidhe believed that the decision in the LaMacchiacase set a bad precedent.

"I am concerned because it implies that it isokay...to distribute pirated software over aUniversity network," Steen said. "It is, ofcourse, not okay because you are distributingstolen goods."

"Still," he added, "the courts need to clarifythe rules in light of the new situations peopleusing networks encounter."

Piracy at Harvard

"I'd define computer piracy loosely as copyingor distributing computer software illegally," saidKim.

He outlined three common situations of piracywhich could make a criminal of a friendly-andunaware-computer user: copying commercial softwarefrom a friend, allowing a friend to copycommercial software from you, or using sharewarewithout registering.

"I would classify all of the above as minorpiracy, and as things that happen all the time,not only at Harvard but everywhere," Kim said. "Ofcourse, minor or not, they are still illegal," headded.

Others agreed that these types of minor piracyabound.

"Here at Harvard, software piracy is notuncommon," Osterberg said, "It's not at alluncommon for roommates or friends to copycommercial software back and forth amongstthemselves."

Both Osterberg and Kim said they had not seenany software piracy operations at Harvard on thescale of LaMacchia's operation at MIT.

Harvard's Rules

The LaMacchia case raises the question of whatHarvard can and should do to prevent suchincidences of large scale piracy from occurringhere.

"Harvard has to worry about this sort ofthing," Kim said. "The MIT incident was by nomeans the first and will not be the last."

Kim stressed the importance of educating usersas to the issues and consequences related tocomputer piracy.

"Once Harvard administrators can be comfortablesaying, `Yes, the students are aware of the issuesand of the potential consequences,' then you canbe more comfortable with the current policies andrules," Kim said.

The rules would have to be constantly evaluatedand modified with student input, Kim said, addingthat he did not think this would happen anytimesoon.

Stafford agreed that Harvard ought to educateits users.

"Harvard should make it clear that students areresponsible for the information that they put onthe network," Stafford said.

Stafford lamented what he sees as Harvard'slack of clear guidelines for computer users.

And Osterberg agreed that the guidelines arenot clear enough on computer and network activity.

"There's not a whole lot Harvard can do in thepreventive stages," Osterberg said. "It's ratherdifficult to monitor that kind of activity on theInternet."

"The most Harvard can really do is make surethat there are sufficient Harvard rules to coverthe various computer crimes [and] misconduct thatcan hapen here on campus," Osterberg said.

"As it stands, Harvard rules don't covercomputer and network activity very well,"Osterberg added. "They're no better than the stateand federal governments on this ount."

Steen responded by defending the rules andsetting them out in simple terms.

"Computer piracy is illegal," he said. "It isillegal to copy and distribute software you do notown. We clearly do not allow illegal activities onour network. Illegal activities on our network areagainst the rules"

But Steen added that Harvard needed to revisitthe issue of computer piracy.

"I think we have to look at the whole issueagain in light of the court action," he said.

Gray Areas

Despite Steen's simple declaration thatcomputer piracy is illegal and illegal activitiesare against the rules, Kim and Stafford both saidthere were gray areas that needed to beconsidered.

"Harvard's rules do not cover acts of ommissionas much as they cover acts of commission, and in acase where the action is non-malicious, I don'tknow what the violation [is] because Harvard hasnot made that clear," Stafford said. "That is oneof the things they need to make clear."

Kim agreed that the issue of "premeditation andignorance" was a significant one.

The key question, he said, was whether someonewas intentionally trying to make softwareavailable so others could copy it for free, orwhether that person made the commercial softwareavailable unwittingly because he was too ignorantto prevent it.

It is this case that Harvard needs to thinkabout, Kim said.

"Does ignorance absolve one ofresponsibility?," he asked. "It's a commonquestion for criminal lawyers, but it's especiallyrelevant to technology related wrongdoings."

Kim outlined some examples of cases where astudent might fall with-in ambiguous territory ifHarvard does not carefully consider the gray areashe suggests.

Is a student responsible if he unwittinglymakes his computer accessible to the entire worldthrough the Internet and people copy software offhis hard drive, Kim asked?

Kim contends that Harvard's rules are notpresently equipped to deal with these problems.

According to Kim, Harvard rules say a studentis responsible if he forgets to log out andsomeone else comes along and does somethingmalicious or illegal, even though the student whoforgot to log out had nothing to do with theincident.

While Harvard's rules on piracy are ambiguous,the judge in LaMacchia's case struck a blow forclearly defined legislation to regulatecyberspace.CrimsonE. Houston Wu

Stearns ruled that "while the government'sobjective is a laudable one,...its interpretationof the wire fraud statute would serve tocriminalize the conduct of not only persons likeLaMacchia, but also the myriad of home computerusers who succumb to the temptation to copy even asingle software program for private use."

In his ruling, Stearns suggested that it is upto Congress to develop new laws for copyrightinfringement to cover Internet and computer ageissues. "This case presents the issue of whethernew wine can be poured into an old bottle," thejudge said.

"One can envision ways that the copyright lawcould be modified to permit such prosecution,"Stearns said, adding that the issue is one for thelegislature, not the Courts, to decide.

The Net Result

Following Stearns' ruling, LaMacchia issued astatement saying, "I am gratfied that JudgeStearns has confirmed that the indictment againstme does not allege conduct that is in factcriminal," the Boston Globe reported.

LaMacchia did not return repeated phone callsor e-mail messages seeking comment for thisarticle.

Daffodil Tyminski, a paralegal for the defensein LaMacchia's case, said that the MIT student waspleased with the case's outcome.

"He is very relieved and glad to be free of alot of the stress he's been under for the pastyear," Tyminski said.

Stern, the U.S. attorney, said in a statementthat he would consider appealing the case.

"The judge's thoughtful decision deservesfurther study before we decide whether to appealit to the first circuit," Stern said. Jeanne M.Kempthorne, the assistant U.S. attorney, said thatStearns "ordered the order of dismissal on January12, so we would have 30 days from that date" tofile an appeal.

But Harvey A. Silverglate, LaMacchia's lawyer,said he thought the prosecution should acceptStearns's decision.

"If I were the prosecutor, I would not appeal,"Silverglate said. "The judge's decision was verywell reasoned.

"However, the department of justice does notalways do things that make sense," he added.

Look to the Capital

A number of people close to the case said theyexpect the federal government to act on thisissue.

"The court's decision suggests that Congressshould revisit this area," Stern said in hisstatement. "I intend to raise with the Departmentof Justice whether it should file legislationexplicitly dealing with willfull, multipleinfringements of copyrighted software, in order toremove any uncertainties."

Silverglate also said he believed that Congresswould reconsider the laws surrounding copyrightinfringement.

"I believe that as a result of this case,Congress will amend the copyright statute, but Iam not sure Congress will decide to criminalizeprecisely what David LaMacchia did," Silverglatesaid.

"[LaMacchia] himself did not upload nordownload nor use any [copyrighted] computersoftware," Silverglate said. "Instead, allLaMacchia did was operate a computerized bulletinboard system."

"To Criminalize what he did would be likecriminalizing operating a phone system becausepeople using that system committed crimes,"Silverglate said.

Washington insiders said they believed thatlegislation regarding computer crimes will makeits way to the hill.

"We are currently considering what newlegislation would be needed if the decision inLaMacchia stands," said Scott Charney, chief ofthe computer crime unit in the criminal divisionof the Department of Justice.

Although the case is still pending because anappeal may be filed, Charney said the JusticeDepartment will examine the need for newlegislation in the meantime.

Such legislation, he said, would be proposedand drafted by the computer crime unit. "It wouldbe reviewed by the criminal division, theDepartment of Justice, and other federal agencies,and if approved by all, might be sent to the Hillfor Congressional action," Charney said.

Charney said the computer crime unit wasspecifically discussing an amendment to thecopyright infringement act, and hoped that thatlegislation would reach Congress before spring.

"But we are also looking at amending other lawsto address other types of computer crime," hesaid.

However, lack of interest in the Senate mayslow the progress of such legislation.

"I don't know whether anyone in Congress thinksthere needs to be any changes to address theproblem of computer piracy," said Joseph Duggan,the communications and policy director for theSenate Commerce Committee, which has jurisdictionover telecommunications issues.

The staff assistant for the subcommittee whichcontrols science and technology issues said shedid not know of any previous or forth-cominglegislation with regard to either computer piracyor the amendment of the copyright statute.

"At this point, I'm not aware of anylegislation that has been proposed this far in the104th Congress," said Dana Johnson, the staffassistant for the consumer affairs and tourismsubcommittee.

Closer to home, Harvard has not been activelylobbying on many computer technology issues.

Kevin Casey, the director of federal and staterelations, said, "I have not been involved inspecific issues regarding computer piracy."

Local Reactions

The reaction of those at Harvard who are morefamiliar with issues of technology was largelyfavorable to the idea of amending the legislation.

"I think [the LaMacchia case] shows that U.S.laws as they stand right now need to be updated totake into account some of the many technologicalissues that are around today," said Eugene E. Kim'96, the former president of the Harvard ComputerSociety (HCS).

John E. Stafford '96, the current president ofHCS and a Crimson editor, agreed with Kim'sassessment.

"I think it sent a pretty clear message to thefederal and state governments that the laws needto be rewritten to cover instances of this naturewhich are now possible because of the Internet,"Stafford said.

Richard B. Osterberg '96 said he believed thattechnology was moving at a faster pace than thelaws covering it.

"I think that what LaMacchia did was wrong,"Osterberg said, but the case "serves to illustratejust how far behind technology our legal systemis."

Franklin M. Steen, the director of the HarvardArts and Sciences Computer Services (HASCS), saidhe believed that the decision in the LaMacchiacase set a bad precedent.

"I am concerned because it implies that it isokay...to distribute pirated software over aUniversity network," Steen said. "It is, ofcourse, not okay because you are distributingstolen goods."

"Still," he added, "the courts need to clarifythe rules in light of the new situations peopleusing networks encounter."

Piracy at Harvard

"I'd define computer piracy loosely as copyingor distributing computer software illegally," saidKim.

He outlined three common situations of piracywhich could make a criminal of a friendly-andunaware-computer user: copying commercial softwarefrom a friend, allowing a friend to copycommercial software from you, or using sharewarewithout registering.

"I would classify all of the above as minorpiracy, and as things that happen all the time,not only at Harvard but everywhere," Kim said. "Ofcourse, minor or not, they are still illegal," headded.

Others agreed that these types of minor piracyabound.

"Here at Harvard, software piracy is notuncommon," Osterberg said, "It's not at alluncommon for roommates or friends to copycommercial software back and forth amongstthemselves."

Both Osterberg and Kim said they had not seenany software piracy operations at Harvard on thescale of LaMacchia's operation at MIT.

Harvard's Rules

The LaMacchia case raises the question of whatHarvard can and should do to prevent suchincidences of large scale piracy from occurringhere.

"Harvard has to worry about this sort ofthing," Kim said. "The MIT incident was by nomeans the first and will not be the last."

Kim stressed the importance of educating usersas to the issues and consequences related tocomputer piracy.

"Once Harvard administrators can be comfortablesaying, `Yes, the students are aware of the issuesand of the potential consequences,' then you canbe more comfortable with the current policies andrules," Kim said.

The rules would have to be constantly evaluatedand modified with student input, Kim said, addingthat he did not think this would happen anytimesoon.

Stafford agreed that Harvard ought to educateits users.

"Harvard should make it clear that students areresponsible for the information that they put onthe network," Stafford said.

Stafford lamented what he sees as Harvard'slack of clear guidelines for computer users.

And Osterberg agreed that the guidelines arenot clear enough on computer and network activity.

"There's not a whole lot Harvard can do in thepreventive stages," Osterberg said. "It's ratherdifficult to monitor that kind of activity on theInternet."

"The most Harvard can really do is make surethat there are sufficient Harvard rules to coverthe various computer crimes [and] misconduct thatcan hapen here on campus," Osterberg said.

"As it stands, Harvard rules don't covercomputer and network activity very well,"Osterberg added. "They're no better than the stateand federal governments on this ount."

Steen responded by defending the rules andsetting them out in simple terms.

"Computer piracy is illegal," he said. "It isillegal to copy and distribute software you do notown. We clearly do not allow illegal activities onour network. Illegal activities on our network areagainst the rules"

But Steen added that Harvard needed to revisitthe issue of computer piracy.

"I think we have to look at the whole issueagain in light of the court action," he said.

Gray Areas

Despite Steen's simple declaration thatcomputer piracy is illegal and illegal activitiesare against the rules, Kim and Stafford both saidthere were gray areas that needed to beconsidered.

"Harvard's rules do not cover acts of ommissionas much as they cover acts of commission, and in acase where the action is non-malicious, I don'tknow what the violation [is] because Harvard hasnot made that clear," Stafford said. "That is oneof the things they need to make clear."

Kim agreed that the issue of "premeditation andignorance" was a significant one.

The key question, he said, was whether someonewas intentionally trying to make softwareavailable so others could copy it for free, orwhether that person made the commercial softwareavailable unwittingly because he was too ignorantto prevent it.

It is this case that Harvard needs to thinkabout, Kim said.

"Does ignorance absolve one ofresponsibility?," he asked. "It's a commonquestion for criminal lawyers, but it's especiallyrelevant to technology related wrongdoings."

Kim outlined some examples of cases where astudent might fall with-in ambiguous territory ifHarvard does not carefully consider the gray areashe suggests.

Is a student responsible if he unwittinglymakes his computer accessible to the entire worldthrough the Internet and people copy software offhis hard drive, Kim asked?

Kim contends that Harvard's rules are notpresently equipped to deal with these problems.

According to Kim, Harvard rules say a studentis responsible if he forgets to log out andsomeone else comes along and does somethingmalicious or illegal, even though the student whoforgot to log out had nothing to do with theincident.

While Harvard's rules on piracy are ambiguous,the judge in LaMacchia's case struck a blow forclearly defined legislation to regulatecyberspace.CrimsonE. Houston Wu