Sunday, January 18, 2009

Illegal Downloading of Software: Czech Cracker Leeches Warez Gets 30

In U.S. v. Klimecek, 2009 WL 102128 (7th Cir. January 15, 2009), the Seventh Circuit upheld a 30-month sentence for a member of a warez group who downloaded Czech movies and music. The decision does not state that any of these works were registered with the Copyright Office. Italics below are from the decision:

He was indicted under 17 U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(1) for willfully infringing copyrights by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. He was further charged under 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1) because the purpose of his infringement was for private financial gain.

Klimecek pleaded guilty. [Rec. Tab 9.] During the plea colloquy, he declared that he bought and installed hardware and software to set up a computer server and paid half of the monthly service charges to connect the server to the Internet. [Rec. Tabs 3-4.] In exchange, Klimecek was to obtain access to Czech movies and music. [Rec. Tab 6.] He admitted that he knew that Internet users from around the world were accessing the server to upload and download copyrighted works. [Rec. Tab 4.] The defendant also stated that during a 180-day period he caused at least ten or more copies of one or more copyrighted items to be uploaded to the server and thus made available for unauthorized download by Internet users. [Rec. Tab 5.] Klimecek admitted that the retail value of these copyrighted materials exceeded $2500. [Rec. Tabs 6-8.]

Even with the guilty plea, Klimecek got thirty months of prison under the Sentencing Guidelines. The court was not sympathetic to his arguments that he was a minor player and found that under the guidelines his conduct did not warrant a further downward departure.

The court also rejected the argument that the sentence was unreasonable. He had no criminal background, made next to no money on the scheme, and claimed he was not particularly sophisticated and thought he was just playing around with some friends.

Be very careful out there. Under the statute, a good chunk of the high-school and college population of the United States would probably qualify for some very hard time. Until the grandchildren of federal judges start getting hit with these sentences, they will continue to appear "reasonable" to the federal judiciary. Housing, feeding and guarding Klimecek for thirty months is an egregious waste of tax dollars and entirely disproportionate to the offense, which could largely be remedied (and give the copyright owners greater financial benefits) through painful but effective civil remedies or restitutionary penalties. Now that Klimecek will spend probably a couple of years in prison, there is little chance he'll be able to pay the level of restitution to the copyright owners that he would have been able to pay if he'd been permitted to work.

A suspended sentence conditioned on restitution would have been the economically prudent and just solution. Just because there is a stupid law on the books does not mean the prosecutor has to ask for a stupid sentence. Cf. Hugo, Victor, Les Miserables. And just because a law is on the books does not mean that the federal judiciary should abandon reason in favor of the Sentencing Guidelines.

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