The United States Sentencing Commission published in the Federal Register today an RFC on changes in sentencing guidelines. Here's an excerpt on electronic copyright infringement: . . . Legislative Amendments Electronic Copyright Infringement 9. Issue for Comment The No Electronic Theft Act, Public Law 105-147, was recently enacted to provide a statutory basis to prosecute and punish persons who, without authorization and without realizing financial gain or commercial advantage, electronically access copyrighted materials or encourage others to do so. The Act includes a directive to the Commission to (A) ensure that the applicable guideline range for a crime committed against intellectual property (including offenses set forth at section 506(a) of title 17, United States Code, and sections 2319, 2319A, and 2320 of title 18, United States Code) is sufficiently stringent to deter such a crime; and (B) ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed. Each of the statutes mentioned in the congressional directive currently are referenced to Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark). That guideline provides for incrementally greater punishment when the retail value of the infringing items exceeded $2,000. However, when copyrighted materials are infringed upon by electronic means, there is no ``infringing item'', as would be the case with counterfeited goods. Therefore, the Commission must determine how to value the infringed upon items in order to implement the congressional directive to take into account the retail value and quantity of the items with respect to which the offense was committed. The Commission invites comment on how Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark) should be amended to best effectuate the congressional directives. An approach suggested by the Department of Justice is set forth below. The Commission invites comment on this and alternative proposals. Department of Justice Proposed Amendments to Sec. 2B5.3: The text of Sec. 2B5.3 is amended to read as follows: ``(a) Base offense level: [6] (b) Specific Offense Characteristic (1) If the loss to the copyright or trademark exceeded $2,000, increase by the corresponding number of levels from the table in Sec. 2F1.1 (Fraud and Deceit).''. The Commentary to Sec. 2B5.3 captioned ``Application Note'' is amended in Note 1 by striking: `` `Infringing items' means the items that violate the copyright or trademark laws (not the legitimate items that are infringed upon).'', and inserting: ``A court may calculate the `loss to the copyright or trademark owner' in any reasonable manner. In determining `loss to the copyright or trademark owner,' the court may consider lost profits, the value of the infringed upon items, the value of the infringing items, the injury to the copyright or trademark owner's reputation, and other associated harms.''. The Commentary to Sec. 2B5.3 captioned ``Application Note'' is amended by striking ``Note'' and inserting ``Notes''; and by adding at the end the following new note: ``2. In some cases, the calculable loss to the victim understates the true harm caused by the offense. For example, a defendant may post copyrighted material to an electronic bulletin board or similar online facility, making it easy for others to illegally obtain and further distribute the material. In such an instance, it may not be possible to determine or even estimate how many copies were downloaded, or how much damage the defendant's conduct ultimately caused. In such cases, an upward departure may be warranted. See Chapter Five, Part K (Departures).''. The Commentary to Sec. 2B5.3 captioned ``Background'' is amended in the first paragraph by striking ``value of the infringing items'' and inserting ``loss to the copyright or trademark owner''; and by striking ``loss or''. [End excerpt] For the full RFC: http://jya.com/ussc010698.txt (254K)