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U.S criminal law’s reinforcement U.S criminal law’s reinforcement of technological measures of technological measures
protecting property: where the protecting property: where the DMCA fits inDMCA fits in
Elliot N. Turrini
Assistant U.S. Attorney
Computer & Telecommunication Coordinator
District of New Jersey
June 14, 2001
IntroductionIntroduction Placing the DMCA in the in larger picture of
criminal law General criminal law approach to property
crimes: – Criminalize substantial interference with
property– Do not criminalize interference or
circumvention of any specific security measure– Sometimes criminalize the distributing of items
that facilitate direct interference with the property
DMCA’s two criminal componentsDMCA’s two criminal components
Anti-circumvention: prohibits circumvention of technological measures that controls access to copyrighted work
Anti-trafficking: prohibits trafficking in technology primarily designed to:– Circumvent technological measure that controls
access to a copyrighted work; or– Circumvent protection of a technological
measure that protects the rights of the copyright owner
DMCA penaltiesDMCA penaltiesDMCA penaltiesDMCA penalties
Basic requirement: violation must be made willfully and for the purpose of commercial advantage or private financial gain
Penalties– Not more than $500,000 fine– Not more than 5 years’ imprisonment
Basic requirement: violation must be made willfully and for the purpose of commercial advantage or private financial gain
Penalties– Not more than $500,000 fine– Not more than 5 years’ imprisonment
General criminal law approach to property General criminal law approach to property
crimescrimes Prohibit direct interference with the tangible
property– Theft & fraud laws– Destruction or damage to property laws– Bottom line: prohibit monetary harm
Intangible property– Presented some problems
Theft laws generally involved the permanent taking of property;
Criminal trespass generally involved physical entry in or on land, structures, vehicles
– General approach: prohibit interference with a set of legally cognizable rights
– Example: criminal copyright infringement
Technical protections: security measuresTechnical protections: security measures Security measures have historically played an
important role in protecting property– Door locks
– Dogs
– Bank vaults
– Alarms
– Surveillance cameras
Role in Information age: even more important– Improvements in information access & ease of
information transfer
– Reduction in physical limitations on crime
Criminal law & security measuresCriminal law & security measures
Tangible measures: Vaults, locks, dogs, etc.– No laws prohibiting interference with any particular
tangible security measure
– Example: bank robber blows up the safe & takes money Direct laws: theft & bank robbery Indirect laws: damage to property & trespass
Intangible measures: av software, firewalls, IDSs– No laws prohibiting interference with any particular
intangible security measure
– Example: hacker defeats firewall & steals credit cards
Indirect laws are not linked to any specific property or security measure – except DMCA
Circumvention damages property
Distributing items that facilitate crimeDistributing items that facilitate crime
General approach to facilitating crime: aiding & abetting liability
Specific examples of laws criminalizing the distribution of items facilitating crimes– Cable piracy
– Access device fraud
– Spy devices
Aiding & abettingAiding & abetting
Elements: 18 USC Section 2– A crime is committed– Defendant willfully participated: taking some
act to make the criminal venture succeed Defenses
– Mere presence is not enough– Mere acquiescence is not enough
Punishment: same as principal
Cable piracy: 47 USC 553 & 605Cable piracy: 47 USC 553 & 605Cable piracy: 47 USC 553 & 605Cable piracy: 47 USC 553 & 605
Main purpose: prevent unauthorized use of cable services
Statutory technique– Section 553: prohibits “assisting in intercepting or
receiving[;]” which includes distribution of descramblers
– Section 605: prohibits “assist[ing] in receiving.
Distributing descramblers– Similar to aiding and abetting
– Facilitates the unauthorized use
– Not really conspiracy
Main purpose: prevent unauthorized use of cable services
Statutory technique– Section 553: prohibits “assisting in intercepting or
receiving[;]” which includes distribution of descramblers
– Section 605: prohibits “assist[ing] in receiving.
Distributing descramblers– Similar to aiding and abetting
– Facilitates the unauthorized use
– Not really conspiracy
Cable piracy penaltiesCable piracy penaltiesCable piracy penaltiesCable piracy penalties
Section 553– Willful violations: fine not more than $1,000 and
imprisonment not more than 6 months
– Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years
Section 605– Willful violations: fine not more than $2,000 and
imprisonment not more than 6 months
– Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years
Section 553– Willful violations: fine not more than $1,000 and
imprisonment not more than 6 months
– Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years
Section 605– Willful violations: fine not more than $2,000 and
imprisonment not more than 6 months
– Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years
Access device offensesAccess device offenses
Section 1029(a)(1)& (2): prohibits knowingly and with intent to defraud producing, using or trafficking in counterfeit or unauthorized access devices.
Access device: “any card, plate, code, account, number , electronic serial number” or “other means of account access” that can be used to obtain money goods, services, or any other thing of value, or that can be used to initiate a transfer of funds.
Examples: credit cards, ESNs, bank account #s Penalty: not more than 10 years imprisonment
Access device-making offensesAccess device-making offenses
Section 1029(a)(4): prohibits knowingly and with intent to defraud producing, trafficking in, having control or custody of, or possessing “device-making equipment
Device-making equipment: “any equipment, mechanism, or impression designed or primarily used for making an access device or counterfeit access device
Penalties: not more than 15 years imprisonment
Spy device offenses: 18 USC 2512Spy device offenses: 18 USC 2512
Section 2512 prohibits intentionally:– manufacturing , assembling, possessing, or selling any
device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications
– Placing an advertisement of any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications
– Sends through interstate commerce any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications
Penalties: $250,000 fine & five years prison
Felony copyright infringementFelony copyright infringement
Elements of 17 USC 506 (a)(2)– Copyright exists
– Infringement by reproduction or distribution
– Defendant acted willfully
– Defendant infringed at least 10 copies of copyrighted works with a retail value of more than $2,500 within a 180-day period
Enhancing element 18 USC 2319: – Done for purposes of commercial advantage or private
financial gain
Wilfull: no clear definition; can include knowledge that conduct was illegal
The EndThe End
Elliot N. Turrini
Assistant U.S. Attorney
Computer & Telecommunication Coordinator
District of New Jersey
(973) 645-2700
