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NAPSTER


See File-Sharing and the Courts (Attempts to Control Technology)



NCIPA


See Children’s Internet Protection Act



NET NEUTRALITY


According to proponents of net neutrality (also known as network or Internet neutrality), the Internet functions best (and most fairly) if Internet service providers (ISPs) do not discriminate among users or data, but instead treat all equally. Differential pricing for different users or types of data violates net neutrality, as does giving higher priority to certain users or types of data. In particular, any attempt by ISPs to create tiered pricing or service, especially to discriminate against subscribers of their competitors, violates net neutrality.


Because the marketplace provides more incentives for ISPs to discriminate against their competitors and in favor of their own content and subscribers than it does to provide neutral access, proponents of net neutrality have attempted to convince the U.S. Congress to enact legislation requiring it. These attempts have been unsuccessful; however, the Federal Communications Commission (FCC) has, for the most part, acted as a guardian of net neutrality. Its authority is limited, however. In 2008, the FCC ruled against Comcast, an ISP, in a complaint brought by Comcast subscribers over Comcast’s interference with their use of BitTorrent, a peer-to-peer networking application. Comcast then petitioned for review in the U.S. Court of Appeals for the District of Columbia Circuit, which held that the FCC had lacked authority to rule against Comcast, because “the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any ‘statutorily mandated responsibility’ ” (Comcast Corp., 600 F. 3d at 661).


Case


Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010)


See also Activism and Advocacy Groups; Broadband; Cable; Federal Communications Commission; Internet


Sources and Further Reading


“Internet Governance: System Error,” The Economist, December 1, 2012, at 67



NO ELECTRONIC THEFT ACT


The No Electronic Theft Act (NET Act) was enacted in 1997 to address the specific problem of warez trading and the general problem of intellectual property piracy. The NET Act was a response to an early unsuccessful attempt to prosecute a warez trader, David LaMacchia, a twenty-one year old student at the Massachusetts Institute of Technology (MIT). LaMacchia operated a bulletin board service (BBS), making use of MIT’s network to do so. In the early 1990s, LaMacchia’s BBS, Cynosure, enabled users to upload and download popular software of the day, such as WordPerfect 6.0, Excel 5.0, and SimCity 2000. Because LaMacchia did not operate Cynosure for financial gain, he could not be charged directly with criminal copyright infringement under the law at the time. In 1994, LaMacchia was arrested and charged with conspiracy to violate the federal wire fraud statute, 18 U.S.C. § 1343 (LaMacchia, 871 F. Supp. at 536). The federal district court for the District of Massachusetts dismissed the charges against LaMacchia. An earlier Supreme Court decision, Dowling v. United States, had held that intellectual property, including copyright, could not be taken by fraud; thus LaMacchia could not have conspired to commit a fraud to take the copyright owners’ property interests in the software (LaMacchia, 871 F. Supp. at 545). The district court was not particularly pleased with its own result, and called LaMacchia’s conduct “at best . . . heedlessly irresponsible, and at worst . . . nihilistic, self-indulgent, and lacking in any fundamental sense of values” (LaMacchia, 871 F. Supp. at 545). Congress, the court suggested, should modify the law: “Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer” (LaMacchia, 871 F. Supp. at 545).


It took three years for Congress, at the urging of content industry lobbyists, to make the modifications suggested by the court. In 1997 Congress enacted the NET Act in order, according to the House of Representatives report on the bill, “to reverse the practical consequences of United States v. LaMacchia” (House Report, *3). Eric Goldman, an expert commentator on the NET Act, describes its effects as follows:



The Act effected six principal changes to criminal copyright law. First, the NET Act expanded the Copyright Act’s definition of “financial gain” to include the receipt (or expectation of receipt) of anything of value, including other copyrighted works. Second, in addition to willful infringement for commercial advantage or private financial gain, the Act criminalized the reproduction or distribution, in any 180 day period, of copyrighted works with a total retail value of more than $1,000. Third, the Act said that evidence of reproducing and distributing copyrighted works does not, by itself, establish willfulness. Fourth, the Act changed the punishments for criminal infringement. For infringements of more than $1,000, the punishment includes imprisonment of up to one year and a fine. For infringements of $2,500 or more, the punishment includes imprisonment of up to three years and a fine. For second or subsequent offenses involving commercial advantage or private financial gain, the punishment includes imprisonment of up to six years. Fifth, the Act permits copyright infringement victims to submit victim impact statements. Finally, the Act instructed the United States Sentencing Commission . . . to adjust the United States Sentencing Guidelines . . . for criminal copyright infringement to make the punishments sufficiently stringent to deter the crimes and to reflect the infringed items’ retail value and quantity (Goldman 2003, 373–374).