A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement

Abstract:     
This Article examines the No Electronic Theft Act (the Act or the NET Act). The Act represents a significant change to copyright law because it subtly shifts the paradigm underlying criminal copyright infringement. For 100 years, criminal infringement punished infringers who derived a commercial benefit based on someone else's copyrighted work. However, through the Act, Congress adopted a paradigm that criminal copyright infringement is like physical-space theft, specifically shoplifting. As a result, the Act significantly extends the boundaries of criminal copyright infringement.

Despite the extended criminal boundaries, a review of the post-passage developments suggests that the Act has been unexpectedly ineffective. To fully understand why, this Article focuses on a group of infringers known as warez traders. While Congress did not specifically reference warez trading in the Act, warez traders were its prime target. Yet, Congress did not fully understand this sociological group or their motivations, resulting in a law poorly tailored to conforming their behavior. But in drafting a broad law to cover warez trading, the Act overstates the harm experienced by copyright owners. This expansive standard for harm covers activities necessary to function in a digital society, unnecessarily turning too many average Americans into criminals. Corrective legislation is required to more precisely distinguish between truly culpable behavior and socially beneficial conduct.

Keywords: Warez, warez trading, warez traders, criminal copyright infringement, peer-to-peer file sharing, p2p, abandonware, no electronic theft act, net act

JEL Classifications: K14, K42, O34

Accepted Paper Series