ARCHIVED: Technical Amendment to H.R. 2265, No Electronic Theft Act

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Hon. Henry J. Hyde, Chairman
House Judiciary Committee
2138 Rayburn House Office Building
Washington, DC 20515

Dear Mr. Chairman:

The undersigned 11 national library and educational organizations (on behalf of our several million members) write to ask your support for a technical, but critical, amendment to H.R. 2265 -- the "No Electronic Theft Act" -- when it is considered by the House Judiciary Committee. It is our understanding that the bill could come before the Committee as early as next Tuesday, October 7.

Our organizations have no quarrel with the intent of this legislation, Mr. Chairman. Because it imposes criminal and civil penalties, however, we respectfully submit that special care must be taken to assure that the new statute will not inadvertently and inappropriately subject to such liability librarians, educators and others engaged in lawful and valuable conduct. There appears to be no disagreement, for example, that a librarian who "willfully" assists a patron to use a library computer, but who had no intention to facilitate copyright infringement in doing so, should not be subjected to criminal prosecution. The amendment that we propose will make that clear in statute. For the reasons detailed below, we thus strongly urge its inclusion in H.R. 2265.

Specifically, as reported by the Subcommittee on Courts and Intellectual Property earlier this week, Section 2(b) of H.R. 2265 would impose criminal liability in specified circumstances upon "any person who infringes a copyright willfully." Proponents of the legislation in its present form argue that the key term "willfully" presupposes that the person prosecuted acted not only with knowledge of what he or she was physically doing, but also with criminal intent to violate copyright. While such assurances clearly have been offered in good faith, it is our understanding that current case law does not uniformly and unambiguously adopt this view of what "willful" necessarily means.

Accordingly, our organizations wish to join others in the private and public sectors in urging the Judiciary Committee to make explicit in statute that criminal intent is a necessary precondition to prosecution under the Copyright Act as it would be amended by H.R. 2265. This may be accomplished simply by inserting the boldface italicized text below into the present text of Section 2(b), as follows:

(b) CRIMINAL OFFENSES. -- Section 506(a) of title 17, United States Code, is amended to read as follows:
(a) CRIMINAL INFRINGEMENT. -- Any person who, with an intent to violate another's copyright, infringes a copyright willfully either -- ....."

Thank you for your consideration and assistance, Mr. Chairman.

Respectfully submitted,

American Association of Law Libraries
American Library Association
Association of Research Libraries
Council for School Networking
International Society for Technology in Education
Medical Library Association
National Association of Independent Schools
National Education Association
National School Boards Association
Special Libraries Association
United States Catholic Conference

cc:

Hon. John Conyers, Jr.
Hon. Howard Coble
Hon. Barney Frank
Other Members, House Judiciary Committee