| Software piracy gave a sharp awakening to | | | | The prosecutor appealed the light sentence, and the |
| copyright infringement counsels around the world. | | | | case was brought back to court for new, harsher, |
| Software piracy law efforts backed by the SIIA | | | | sentencing. These types of decisions surely |
| (Software and Information Industry Association), the | | | | contribute to the 2.3 million people that are |
| RIAA (Recording Industry Association of America), | | | | imprisoned today – up from 1.1 million in 1990. |
| the Business Software Association (BSA) and of | | | | Pew Research reports 1 in every 100 adults in |
| course Microsoft, are running fast and furious to | | | | America is in prison. |
| intimidate internet pirates and quash any and all | | | | The US Sentencing Guidelines Manual (U.S.S.G.) lists |
| efforts of internet piracy, software piracy and | | | | the mitigating factors that are taken into |
| copyright infringement on software, music and film. | | | | consideration for internet piracy, software piracy and |
| Efforts at suppressing internet piracy, copyright | | | | copyright infringement in Section 2B5.3. Because |
| infringement and software piracy are running full | | | | copyright infringement is an economic offense, the |
| speed ahead. | | | | retail cost of the software pirated and the number |
| Illegal copyright infringement and software piracy can | | | | of items pirated determine the severity of the crime. |
| result in civil or criminal trials. Prior to 1978, copyright | | | | The Courts use a “base” crime level, and |
| infringement could be subject to state or federal | | | | adjust the sentencing accordingly with the elements |
| laws. However, in 1976, Congress codified Section 17 | | | | of the case. Copyright Infringement starts off at |
| of the United States Code to limit copyright | | | | “level 8,” and only one count of a value |
| infringement to the federal courts effective January | | | | under $2000 could bring a sentence anywhere from |
| 1, 1978 – essentially dissolving the power of the | | | | 0 to 6 years (as determined in the 2007 Federal |
| states to prosecute cases of copyright infringement | | | | Sentencing Guidelines Chapter Five Part A Sentencing |
| – the legal claim for software piracy and internet | | | | Table). With just one or two “marks” against |
| piracy. Sentencing for federal crimes have been | | | | a defendant, the minimum jail times goes up to 4 |
| historically more punitive than that for state crimes | | | | years. “Uploading” is 2 points – and |
| and have been under legislative and judicial scrutiny | | | | increases the sentence to 4-10 years. |
| for decades. | | | | Software piracy, internet piracy and copyright |
| The Sentencing Reform Act of 1984 led to Federal | | | | infringement prison terms are still undergoing scrutiny |
| Sentencing Guidelines that were enacted in 1987 | | | | during the appeals process. Despite strict sentencing |
| – presumably to develop consistency in | | | | in copyright infringement, Internet piracy is far from |
| sentencing. In 2004 the Federal Sentencing Guidelines | | | | being quashed. MarketingVox has reported a 3% |
| were struck down by the Supreme Court. The | | | | increase in illegal music downloads over the last |
| Supreme Court decided the federal guidelines were | | | | couple years, even as prison for piracy escalates. |
| advisory, but not mandatory. Hence, anyone subject | | | | Copyright infringement litigation will be tossed and |
| to federal sentencing for copyright infringement, | | | | turned in the courts with unexpected prison |
| software piracy or internet piracy could receive a | | | | sentences and damage awards until the district |
| substantially higher sentence than the federal | | | | courts develop consistent sentencing precedents |
| guidelines suggest – and presumably lower. But | | | | based on the motivations of the piracy and severity |
| apparently “advisory” is still mandated. In the | | | | of the crimes that adhere to the constitutional |
| USA vs. Kononchuck software piracy case which | | | | principals. Until Congress, the Courts and the |
| involved pirated Microsoft software, the original | | | | Constitution speak the same language, Internet |
| sentencing judge was lenient and sentenced one of | | | | pirates are likely to be facing some federal jail time in |
| the defendants to only probation and house arrest. | | | | the years to come. |