December 28, 1994


This case presents the issue of whether new wine can be poured into an
old bottle. The facts, as seen in the light most favorable to the
government, are these. The defendant, David LaMacchia, is a twenty-one
year old student at the Massachusetts Institute of Technology (MIT).
LaMacchia, a computer hacker, used MIT's computer network to gain
entree to the Internet.  Using pseudonyms and an encrypted address,
LaMacchia set up an electronic bulletin board which he named Cynosure.
[fn 1] He encouraged his correspondents to upload popular software
applications (Excel 5.0 and WordPerfect 6.0) and computer games (Sim
City 2000). These he transferred to a second encrypted address
(Cynosure II) where they could be downloaded by other users with
access to the Cynosure password. Although LaMacchia was at pains to
impress the need for circumspection on the part of his subscribers,
the worldwide traffic generated by the offer of free software
attracted the notice of university and federal authorities.

On April 7, 1994, a federal grand jury returned a one count indictment
charging LaMacchia with conspiring with "persons unknown" to violate
18 U.S.C. Sec. 1343, the wire fraud statute.  According to the
indictment, LaMacchia devised a scheme to defraud that had as its
object the facilitation "on an international scale" of the "illegal
copying and distribution of copyrighted software" without payment of
licensing fees and royalties to software manufacturers and vendors.
The indictment alleges that LaMacchia's scheme caused losses of more
than one million dollars to software copyright holders. The indictment
does not allege that LaMacchia sought or derived any personal benefit
from the scheme to defraud.

On September 30, 1994. the defendant brought a motion to dismiss,
arguing that the government had improperly resorted to the wire fraud
statute as a copyright enforcement tool in defiance of the Supreme
Court's decision in Dowling v. United States, 473 U.S. 207 (1985) The
government argues that Dowling is a narrower case than LaMacchia would
have it, and holds only that copyright infringement does not satisfy
the physical "taking" requirement of the National Stolen Property Act,
18 U.S.C. Sec. 2314.


Paul Edmond Dowling was convicted of conspiracy, interstate
transportation of stolen property [ITSP], copyright violations and
mail fraud in the Central District of California. Dowling and his
co-conspirators sold bootleg Elvis Presley recordings by soliciting
catalogue orders from post office boxes in Glendale, California. The
infringing recordings were shipped in interstate commerce to Maryland
and Florida. The eight ITSP counts on which Dowling was convicted
involved thousands of phonograph albums.  "[E]ach album contained
performances of copyrighted musical compositions for the use of which
no licenses had been obtained nor royalties paid ...." Dowling, supra
at 212.  Dowling appealed his convictions (except those involving
copyright infringement) The Ninth Circuit Court of Appeals affirmed.
"[T]he [Ninth Circuit] reasoned that the rights of copyright owners in
their protected property were indistinguishable from ownership
interests in other types of property and were equally deserving of
protection under the [stolen property] statute." Id.

The Supreme Court granted certiorari only as to Dowling's convictions
for interstate transportation of stolen property [fn 2].  The Court, in
an opinion by Justice Blackmun, held that a copyrighted musical
composition impressed on a bootleg phonograph record is not property
that is "stolen, converted, or taken by fraud" within the meaning of
the Stolen Property Act.  Justice Blackmun emphasized that cases
prosecuted under Sec. 2314 had traditionally involved "physical
'goods, wares [or] merchandise.'" The statute "seems clearly to
contemplate a physical identity between the items unlawfully obtained
and those eventually transported, and hence some prior physical taking
of the subject goods" Id at 216. In Dowling's case there was no
evidence "that Dowling wrongfully came by the phonorecords actually
shipped or the physical materials from which they were made." Dowling,
supra at 214.

Justice Blackmun felt compelled, however, to answer the government's
argument that the unauthorized use of the underlying musical
compositions was itself sufficient to render the offending
phonorecords property "stolen, converted or taken by fraud."

   [T]he Government's theory here would make theft, conversion, or fraud
   equivalent to wrongful appropriation of statutorily protected rights in
   copyright. The copyright owner, however, holds no ordinary chattel. A
   copyright, like other intellectual property, comprises a series of
   carefully defined and carefully delimited interests to which the law
   affords correspondingly exact protections. Id. at 216.

A copyright, as Justice Blackmun explained, is unlike an ordinary
chattel because the holder does not acquire exclusive dominion over
the thing owned. The limited nature of the property interest conferred
by copyright stems from an overriding First Amendment concern for the
free dissemination of ideas. "The primary objective of copyright is
not to reward the labor of authors. but '[t]o promote the Progress of
Science and useful Arts.' Art. I, Sec. 8, cl. 8." Feist Publications,
Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349 (1991).  Data
general Corp. v. Grumman Systems Support, 36 F.3d 1147, 1187 (1st Cir.
1994) (same).  Justice Blackmun offered the "fair use" doctrine (17
U.S.C. Sec. 107) and the statutory scheme of compulsory licensing of
musical compositions (17 U.S.C. Sec. 115) as examples of ways in which
the property rights of a copyright holder are circumscribed by the
Copyright Act [fn 3]. Dowling, supra at 217.

   It follows that interference with copyright does not easily equate
   with theft, conversion or fraud. The Copyright Act even employs a
   separate term of art to define one who misappropriates a copyright:
   "Anyone who violates any of the exclusive rights of the copyright
   owner," that is, anyone who trespasses into his exclusive domain by
   using or authorizing the use of the copyrighted work in one of the
   five ways set forth in the statute, "is an infringer of the
   copyright." There is no dispute in this case that Dowling's
   unauthorized inclusion on his bootleg albums of performances of
   copyrighted compositions constituted infringement of those copyrights.
   It is less clear, however, that the taking that occurs when an
   infringer arrogates the use of another's protected work comfortably
   fits the terms associated with physical removal employed by Sec. 2314.
   The infringer invades a statutorily defined province guaranteed to the
   copyright holder alone. But he does not assume physical control over
   the copyright; nor does he wholly deprive its owner of its use. While
   one may colloquially like infringement with some general notion of
   wrongful appropriation, infringement plainly implicates a more complex
   set of property interests than does run-of-the-mill theft, conversion
   or fraud. As a result, it fits but awkwardly with the language
   Congress chose - "stolen, converted or taken by fraud" - to describe
   the sorts of goods whose interstate shipment Sec. 2314 makes criminal.
   Id at 217-218 (citations omited).

The ITSP statute, Justice Blackmun observed, had its roots in efforts
by Congress to supplement the efforts of state authorities frustrated
by jurisdictional problems arising from the transportation of stolen
property across state lines. Id. at 219-220.

   No such need for supplemental federal action has ever existed,
   however, with respect to copyright infringement, for the obvious
   reason that Congress always has had the bestowed authority to
   legislate directly in this area.... Given that power, it is
   implausible to suppose that Congress intended to combat the problem of
   copyright infringement by the circuitous route hypothesized by the
   government . . . In sum, the premise of Sec. 2314 -- the need to fill
   with federal action an enforcement chasm created by limited state
   jurisdiction -- simply does not apply to the conduct the Government
   seeks to reach here.  Id at 220-221.

A review of the evolution of criminal penalties in the Copyright Act
led Justice Blackmun to observe that:

   "[T]he history of the criminal infringement provisions of the
   Copyright Act reveals a good deal of care on Congress' part before
   subjecting copyright infringement to serious criminal penalties.... In
   stark contrast, the Government's theory of this case presupposes a
   congressional decision to bring the felony provisions of Sec. 2314,
   which make available the comparatively light fine of not more than
   $10,000 but the relatively harsh term of imprisonment of up to 10
   years, to bear on the distribution of a sufficient quantity of any
   infringing goods simply because of the presence here of a
   factor-interstate transportation-not otherwise though relevant to
   copyright law. The Government thereby presumes congressional adoption
   of an indirect but blunderbuss solution to a problem treated with
   precision when considered directly. Id. at 225-226.

Finally, noting that the government's expansive reading of the Stolen
Property Act would have the unsettling effect of criminalizing a broad
range of conduct involving copyright and other intellectual property
that had been historically regulated by the civil laws, Justice
Blackmun concluded that "the deliberation with which Congress over the
last decade has addressed the problem of copyright infringement for
profit, as well as the precision with which it has chosen to apply
criminal penalties in this area, demonstrates anew the wisdom of
leaving it to the legislature to define crime and prescribe penalties.
Here, the language of Sec. 2314 does not 'plainly and unmistakably'
cover petitioner Dowling's conduct" Id at 228 (footnote omitted).
Dowling's ITSP convictions were reversed.


Article 1, Sec. 8, cl. 8 of the U S Constitution grants Congress the
exclusive power "[t]o promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive
Right to their respective writings and Discoveries."  Thus "[t]he
remedies for infringement 'are only those prescribed by Congress.'"
Sony Corporation of America v. Universal City Studios, Inc., 464 U.S.
417, 431 (1984) (quoting Thompson v. Hubbard, 131 U.S. 123, 151
(1889)). Since 1897, when criminal copyright infringement was first
introduced into U.S. copyright law, [fn 4] the concept differentiating
criminal from civil copyright violations has been that the
infringement must be pursued for purposes of commercial exploitation.

Until 1909, "[t]he crime of copyright infringement was . . . limited
to unlawful performances and representation of copyrighted dramatic
and musical compositions."  Saunders, Criminal Copyright Infringement
and the Copyright Felony Act, 71 Denv. U.L.  Rev. 671, 673 (1994). The
1897 Act defined the mens rea of criminal copyright
infringement as conduct that is "willfull" and undertaken "for
profit," a definition that remained unaltered until the general
revision of the Copyright Act in 1976.

In 1909, the Copyright Act was revised to extend misdemeanor criminal
sanctions to infringement of all copyrighted material with the
exception of sound recordings.  Copyright Act of 1909, ch. 320, 33
stat 1075-1082. The 1909 amendments also made criminal the knowing and
willful aiding and abetting of another's infringing activities.
Performers and producers of musical recordings were not protected under
the 1909 Act, and composers were given the exclusive rights to license
only the first recording of their musical works. After that, a
compulsory licensing provision allowed anyone to record and distribute
the work so long as a two cent per copy royalty was paid to the
original composer. Id, Subsec. 1(e), 25(e).

The framework set out by the 1909 Act remained in effect until 1971,
when the growth of the recording industry following the musical
revolution of the 1960's brought the problem of unauthorized
reproduction and sale of musical works to Congress' attention. See
H.R. Rep. No. 487, 92d Cong. 1st Sess. 2 (1971). In response, Congress
passed the Sound Recording Act of 1971, which addressed the perceived
flaw in the 1909 Act by granting sound recordings full copyright
protection, including criminal penalties for profit motivated
infringement. In 1976, Congress revamped the Copyright Act by
eliminating the crime of aiding and abetting copyright infringement.
It also eased the mens rea requirement for criminal copyright
infringement by eliminating the burden of proving that an infringer
acted "for profit," requiring instead only that the infringement be
conducted "willfully and for purposes of commercial advantage or
private financial gain." 17 U.S.C. Sec. 506(a). Criminal infringement
under the 1976 Act was a misdemeanor except in the case of repeat
offenders (who could be sentenced to a maximum of two years and a fine
of $50,000).

After lobbying by the Motion Picture Association and the Recording
Industry Association, Congress increased the penalties for criminal
infringement in 1982. Act of May 24, 1982. Pub. L. No. 97-180. 97th
Cong. 2d Sess., 96 Stat. 91. Certain types of first-time criminal
infringement were punishable as felonies depending on the time period
involved and the number of copies reproduced or distributed. [fn 5]
See 18 U.S.C. Sec. 2319.  The mens rea element, however,
remained unchanged, requiring proof of "commercial advantage or
private financial gain."  17 U.S.C. Sec. 506(a). Most criminal
infringements remained misdemeanor offenses despite the new penalty

In the decade following the 1982 revisions to the Copyright Act, the
home computing and software industry underwent a period of explosive
growth paralleling the expansion in the 1960's and 1970's of the
recording and motion picture industries. In 1992, the Software
Publishers Association reported in testimony to the Subcommittee on
Intellectual Property and Judicial Administration of the House Committee
on the Judiciary that software manufacturers were losing $2.4 billion in
revenues annually as a result of software piracy. "Rather than adopting
a piecemeal approach to copyright legislation and simply adding computer
programs to audiovisual works, and sound recordings to the list of works
whose infringement can give rise to felony penalties under [18 U.S.C.]
Sec. 2319," Congress passed the Copyright Felony Act. [fn 6] Saunders,
supra, at 680. The Act amended Sec. 2319 by extending its felony
provision to the criminal infringement of all copyrighted works
including computer software. [fn 7] The mens rea for criminal
infringement remained unchanged, requiring prosecutors to prove that the
defendant infringed a copyright "willfully and for purpose of commercial
advantage or private financial gain." 17 U.S.C. Sec. 506(a). [fn 8]


The wire fraud statute, 18 U.S.C. Sec. 1343 was enacted in 1952. In its
entirety, the statute reads as follows:

   Whoever, having devised or intending to devise any scheme or artifice to
   defraud, or for obtaining money or property by means of false or
   fraudulent pretenses, representations, or promises, transmits or causes
   to be transmitted by means of wire, radio, or television communication
   in interstate or foreign commerce, any writings, signs, signals,
   pictures, or sounds for the purpose of executing such scheme or artifice,
   shall be fined not more than $1,000 or imprisoned not more than five
   years, or both. If the violation affects a financial institution, such
   person shall be fined not more than $1,000,000 or imprisoned not more
   than 30 years, or both.

The wire fraud statute was enacted to cure a jurisdictional defect that
Congress perceived was created by the growth of radio and television as
commercial media. In its report to the House of Representatives, the
Committee on the Judiciary explained:

   [T]he measure in amended form. . .creates a new. but relatively isolated
   area of criminal conduct consisting of the execution of a scheme to
   defraud or to obtain money or property by means of false or fraudulent
   pretenses, representations, or promises transmitted in writings, signs,
   pictures, or sounds via interstate wire or radio communications (which
   includes the medium of television). . . The rapid growth of interstate
   communications facilities, particularly those of radio and television,
   has given rise to a variety of fraudulent activities on the part of
   unscrupulous persons which are not within the reach of existing mail
   fraud laws, but which are carried out in complete reliance upon the use
   of wire and radio facilities and without resort to the mails.... Even in
   those cases of radio fraud where the mails have played a role, it is
   sometimes difficult to prove the use of the mails to the satisfaction of
   the court, and so prosecutions often fail.  Because of the greater
   facility in proving the use of radio, this bill if enacted might often
   rescue a prosecution which would otherwise be defeated on

H.R. Rep. No. 388, 82d Cong., 1st Sess. 102 (1951).

As the legislative history makes clear, the wire fraud statute was
intended to complement the mail fraud statute by giving federal
prosecutors jurisdiction over frauds involving the use of interstate (or
foreign) wire transmissions. [fn 9] Thus what can be prosecuted as a
scheme to defraud under the mail fraud statute (18 U.S.C. Sec. 1341) is
equally susceptible to punishment under Sec. 1343 so long as the
jurisdictional element is met. Carpenter v. United States. 484 U.S. 19,
25 n.6 (1987). McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc. 904
F.2d 786, 791 n.8 (1st Cir. 1990). The concomitancy of the two statutes
underlies the government's argument that significance should be read
into the fact that the limited grant of certiorari in Dowling left
Dowling's convictions for mail fraud undisturbed.

A scheme to defraud is the defining concept of the mail and wire fraud
statutes.  Because of the conjunctive use of the word "or" in the
statutory phrase "any scheme or artifice to defraud, or for obtaining
money or property by false or fraudulent pretenses, representations, or
promises." the federal courts (encouraged by prosecutors) have
essentially bifurcated mail and wire fraud into two separate offenses;
the first, the devising of a scheme to defraud, the second, the devising
of a scheme to obtain money or property by false pretenses.  While the
latter crime comports with common law notions of fraud, "[t]he phrase,
'a scheme to defraud' came to prohibit a plan, that is, to forbid a
state of mind, rather than physical conduct." Moohr, Mail Fraud and the
Intangible Rights Doctrine: Someone to Watch Over Us, 31 Harv. J. on
Legis. 153, 161 (1994).

The incarnation of mail fraud as an inchoate crime has its most
celebrated expression in federal prosecutions of state and local public
officials accused of depriving citizens of their intangible right to
honest public service in violation of their fiduciary duty to disclose
conflicts of interest. [fn 10] See United States v. Mandel, 591 F.2d
1347, 1360-1362 (4th Cir. 1979). Because of the so-called "intangible
rights doctrine," mail fraud and its sister offense, wire fraud, have
become the federal prosecutor's weapon of choice. "Mail fraud . . . has
been expanded to the point that a fiduciary, agent, or employee commits
an offense when, through a material deception or a failure to disclose,
a beneficiary, principal or employer suffers even an intangible,
constructed detriment." Moohr, supra, 31 Harv. J. On Legis. at 163. Wire
fraud offers an especially pleasing feature from the government's
perspective that is particularly relevant to LaMacchia's case. Unlike
the criminal copyright statute, 17 U.S.C. Sec. 506(a), the mail and wire
fraud statutes do not require that a defendant be shown to have sought
to personally profit from the scheme to defraud. See United States v.
Silvano, 812 F.2d 754, 759-760 (1st Cir. 1987).

While it is true, as LaMacchia contends, that the denial of a writ of
certiorari "imports no expression upon the merits of the case," United
States v. Carver, 260 U.S.  482, 490 (1923), the more interesting issue
is whether the Ninth Circuit's mail fraud analysis (the significant
portions of which the Supreme Court left intact) is applicable to the
facts of his case.

Dowling brought himself within the orbit of the mail fraud statute by
mailing catalogues advertising his bootleg phonograph records. So, too,
the government argues, LaMacchia subjected himself to the wire fraud
statute by advertising infringing software via computer transmissions.
The government in Dowling (as here) did not argue any more than
jurisdictional significance for Dowling's mailings, that is, the
mailings themselves did not make any false or misleading
representations. They did, however, serve as an obvious means of
furthering Dowling's scheme to defraud. See Schmuck v. United States, 489
U.S. 705. 710-711 (1989).

The Ninth Circuit nonetheless focused on the fact that Dowling had
"concealed his activities from the copyright holders with the intent to
deprive them of their royalties."  739 F.2d at 1449. "It is settled in
this Circuit that a scheme to defraud need not be an active
misrepresentation. A nondisclosure or concealment may serve as a basis
for the fraudulent scheme." Id. at 1448.  See also United States v.
Silvano, supra, 812 F.2d at 759 (same). The Ninth Circult rejected
Dowling's argument that non-disclosure can serve as the basis of a
scheme to defraud only when a defendant has a fiduciary duty to make an
affirmative disclosure. It also rejected the government's contention
that "the presence of illegal conduct alone may constitute the basis of
the 'fraud' element." 739 F.2d at 1449. "Rather, we conclude that a
non-disclosure can only serve as a basis for a fraudulent scheme when
there exists an independent duty that has been breached by the person so
charged." Id. This duty, the Ninth Circuit noted, could be fiduciary in
nature, or it could "derive from an independent explicit statutory duty
created by legislative enactment." Id.  In Dowling's case, the duty
located by the Ninth Circuit was the duty implicit in the compulsory
licensing scheme of the Copyright Act, 17 U.S.C. Sec. 115, which
requires vendors to notify copyright owners of the intention to
manufacture and distribute infringing records.

   In conclusion, we stress that the narrowness of our holding permits
   nondisclosures to form the basis of a scheme to defraud only when there
   exists an independent duty (either fiduciary or derived from an explicit
   and independent statutory requirement) and such a duty has been
   breached.  To hold otherwise that illegal conduct alone may constitute
   the basis of the fraud element of a mail fraud conviction would have the
   potential of bringing almost any illegal act within the province of the
   mail fraud statute.

739 F.2d at 1450.

The difficulties in applying the Ninth Circuit's Dowling analysis to
support a wire fraud prosecution in LaMacchia's case are three.  First,
no fiduciary relationship existed between LaMacchia and the
manufacturers whose software copyrights he allegedly infringed. Second,
there is no independent statutory duty of disclosure like the one that
snared Dowling because there is no software equivalent to the compulsory
licensing scheme. [fn 11] Third, even were I to accept the argument made
by the government in Dowling, that illegal conduct alone may suffice to
satisfy the fraud element of [Sec. 1343], the holding would not cover
LaMacchia's case for the simple reason that what LaMacchia is alleged to
have done is not criminal conduct under Sec. 506(a) of the Copyright
Act. [fn 12]

The government's second and more plausible argument relies on the
unobjectionable proposition "that [the] enactment of particularized
federal interest statutes does not oust a more general interstate
commerce statute from application."  Government's Memorandum at 11.  The
government cites a number of areas of specialized federal law where the
mail and wire fraud statutes have been held to remain viable enforcement
tools.  This same argument, however, did not impress Justice Blackmun in
Dowling, as none of the cases cited there (as here) "involved copyright
law specifically or intellectual property in general." Dowling, supra at
218 n.8. [fn 13] The government also points to 18 U.S C. Sec. 2319(a),
which provides that "[w]hoever violates section 506(a). . . of title 17
shall be punished as provided in subsection (b) of this section and such
penalties shall be in addition to any other provisions of title 17 or
any other law."  The government emphasizes the last four words of the
statute without apparently noticing the first four.  LaMacchia is not
alleged to have violated section 506(a).  See also Dowling, supra at 225
n.18 ("In the absence of and such indication [that Congress intended to
approve the use of Sec. 2314 in a copyright prosecution], we decline to
read the general language appended to Sec. 2319(a) impliedly to validate
extension of Sec. 2314 in a manner otherwise unsupported by its language
and purpose").  Finally, the government cites Carpenter v. United
States, 484 U.S 19 (1987), which holds that intangible as well as
tangible property interests are protected by the mail and wire fraud
statutes.  "Absolutely nothing in Carpenter," the government argues,
"distinguishes intangible right to copy, distribute and license computer
software from other intangible property interests...." Government's
Memorandum at 13.  But see United States v. Riggs, 739 F. Supp. 414,
422-423 (N.D. Ill.  1990) ("As Dowling . . .  recognized, the copyright
holder owns only a bundle of intangible rights which can be infringed,
but not stolen or converted.  The owner of confidential, proprietary
business information, in contrast, possesses something which has clearly
been recognized as an item of property").

The issue thus is whether the "bundle of rights" conferred by copyright
is unique and distinguishable from the indisputably broad range of
property interests protected by the mail and wire fraud statutes.  I
find it difficult, if not impossible, to read Dowling as saying anything
but that it is. [fn 14] "A copyright, like other intellectual property,
comprises a series of carefully defined and carefully delimited
interests to which the law affords correspondingly exact protections."
Dowling, supra at 216. If, as the government contends, Dowling stands
for nothing more than the proposition that one cannot equate copyright
infringement with a "physical taking" for purposes of the Stolen
Property Act, [fn 15] it is difficult to explain why Justice Blackmun
devoted the bulk of his opinion to the issue of "whether the history and
purpose of Sec. 2314 evince a plain congressional intention to reach
interstate shipments of goods infringing copyrights." Dowling supra at
218. [fn 16] Nor can one explain why the same analysis should not be
applied to the mail and wire fraud statutes, which like the Stolen
Property Act, were enacted to fill enforcement gaps in state and federal
law. Why is it not true of mail and wire fraud, as it is of ITSP, that
"[n]o such need for supplemental federal action has ever existed ....
for the obvious reason that Congress always has had the bestowed
authority to legislate directly in this area [of copyright
infringement]"? Dowling supra at 220. Finally, why would not the
government's position here produce the same pernicious result that
Justice Blackmun warned of in Dowling, of permitting the government to
subvert the carefully calculated penalties of the Copyright Act by
selectively bringing some prosecutions under the more generous penalties
of the mail and wire fraud statutes? [fn 17]

What the government is seeking to do is to punish conduct that
reasonable people might agree deserves the sanctions of the criminal
law.  But as Justice Blackmun observed in Dowling, copyright is an area
in which Congress has chosen to tread cautiously, relying "chiefly . . .
on an array of civil remedies to provide copyright holders protection
against infringement," while mandating "studiously graded penalties" in
those instances where Congress has concluded that the deterrent effect
of criminal sanctions are required. Dowling, supra at 221, 225. "This
step-by-step, carefully considered approach is consistent with Congress'
traditional sensitivity to the special concerns implicated by the
copyright laws." Id at 225. Indeed, the responsiveness of Congress to
the impact of new technology on the law of copyright limned earlier in
this opinion, confirms Justice Blackmun's conviction of "the wisdom of
leaving it to the legislature to define crime and prescribe penalties"
Dowling, supra at 228.

   "The judiciary's reluctance to expand the protections afforded by the
   copyright without explicit legislative guidance is a recurring theme.
   Sound policy, as well as history, supports our consistent deference to
   Congress when major technological innovations alter the market for
   copyrighted materials. Congress has the institutional authority and the
   institutional ability to accommodate fully the varied permutations of
   competing interests that are inevitably implicated by such new

Sony Corporation of America v. Universal City Studios, Inc., 464 U.S.
417, 431 (1984) (citations omitted).

While the government's objective is a laudable one, particularly when the
facts alleged in this case are considered, its interpretation of the
wire fraud statute would serve to criminalize the conduct of not only
persons like LaMacchia, but also the myriad of home computer users who
succumb to the temptation to copy even a single software program for
private use.  It is not clear that making criminals of a large number of
consumers of computer software is a result that even the software
industry would consider desirable. [fn 18]

In sum, I agree with Professor Nimmer that:

   The Dowling decision establishes that Congress has finely calibrated the
   reach of criminal liability [in the Copyright Act], and therefore absent
   clear indication of Congressional intent, the criminal laws of the
   United States do not reach copyright-related conduct.  Thus copyright
   prosecutions should be limited to Section 506 of the Act, and other
   incidental statutes that explicitly refer to copyright and copyrighted

3 Nimmer on Copyright, Sec. 15.05 at 15-20 (1993).  See also 2
Goldstein, Copyright, Sec. at 304 n. 67 (1989) ("[A]lthough the
Court did not directly rule on whether the mail fraud statute
encompassed the infringing conduct, its reasoning with respect to the
Stolen Property Act, 18 U.S.C. Sec. 2314, suggests that it would have
treated the mail fraud statute similarly.")

Accordingly, I rule that the decision of the Supreme Court in Dowling v.
United States precludes LaMacchia's prosecution for criminal copyright
infringement under the wire fraud statute. [fn 19]

This is not, of course, to suggest that there is anything edifying about
what LaMacchia is alleged to have done. If the indictment is to be
believed, one might at best describe his actions as heedlessly
irresponsible. and at worst as nihilistic, self-indulgent, and lacking
in any fundamental sense of values. 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.
One can envision ways that the copyright law could be modified to permit
such prosecution. But, "'[i]t is the legislature, not the Court which is
to define a crime, and ordain its punishment.'" Dowling, supra at 214
(quoting United States v. Wiltberger, 5 Wheat. 76, 95 (1820)).


For the foregoing reasons, defendant LaMacchia's motion to dismiss is


				[signed, Richard G. Stearns]

				United States District Judge


[1] The allusion is presumably to the North Star, a faithful
astronomical reference point for mariners.

[2] The Court observed a split among the Circuits concerning the
applicability of 18 U.S.C. Sec. 2314 to the interstate transportation
of infringing articles.

[3] Another example is the finite duration of a copyright. See 17
U.S.C. Sec. 302.

[4] Act of January 6, 1897. ch 4. 29 Stat. 481--482.

[5] While the offense of criminal copyright infringement remained
defined by 17 U.S.C.  Sec. 506(a), the penalties were moved to a new
freestanding statute, 18 U.S.C. Sec. 2319.

[6] Pub. L. No. 102-561 [S. 893] (October 28, 1992) (enacted after
amendment). This is not to say that Congress had been inattentive to the
needs of the emerging software industry. In 1980, Congress added
"computer program" to the list of definitions of works protected under
the copyright statute See 17 U.S.C. Sec. 101. The Computer Software
Rental Amendments Act of 1990 gave further protection to holders of
software copyrights, although declining to subject violators to the
criminal penalties of 17 U.S.C.  Sec. 506 and 18 U.S.C. Sec. 2319. See
17 U.S.C. Sec. 109(b)(4).

[7] The Report that accompanied the Senate version of the bill declared
that "[t]he only defense against [software] piracy is the
copyright law." S. Rep. No. 268. 102d Cong., 2d Sess. (1992) (emphasis

[8] As Senator Hatch, the Senate sponsor of the Act noted, "the copying
must be undertaken to make money, and even incidental financial benefits
that might accrue as a result of the copying should not contravene the
law where the achievement of those benefits [was] not the motivation
behind the copying." 138 Cong. Rec. S. 17958-17959 (October 8, 1992).

[9] The "interstate" limitation was inserted into the statute both out
of jurisdictional concerns and to "avoid intrusion on the police power
of the States." H.R. Rep. No. 388, supra, at 3. The police power of the
States, of course, does not extend to the regulation of copyright,
leading one to doubt, as defendant points out, that the statute was
enacted to supplement state efforts to police copyright infringement.
Defendant's Memorandum at 18.

[10] The origins and contours of the intangible rights doctrine (and the
short-lived effort of the Supreme Court to reground the mail fraud
statute in traditional concepts of property, see McNally v. United
States, 483 U.S. 350 (1987)) are capably portrayed in Moohr, supra, 31
Harv. J. on Legis at 158-170. The doctrine has been applied with similar
effect to schemes rising in a commercial context. See United States v.
George, 477 F.2d 508 (7th Cir. 1973) (commercial kickbacks, employee's
duty to disclose).

[11] In Cooper v. United States, 639 F Supp. 176, 180 (M.D. Fla. 1986),
cited by the government, the petitioners did not raise the sufficiency
of the allegation of a scheme to defraud, but rather the possibility
that the jury might have perceived the interstate transportation of the
pirated cassette tapes as the gravamen of the scheme, a theory
indisputably precluded by the Supreme Court's Dowling decision.

[12] I do not believe that the Ninth Circuit's mail fraud analysis
survives Dowling in any event, as I will explain. Dowling, I note, did
not contest his conviction for criminal violations of Sec. 506(a) of the
Copyright Act.

[13] The suggestion that the felony provisions of the wire fraud statute
were enacted with the punishment of copyright infringement in mind in
somewhat difficult to accept when one remembers that in 1952 the
Copyright Act authorized only misdemeanor prosecutions, a circumstance
that continued until 1982.  Equally difficult to accept is the idea that
Congress has in some fashion acquiesced by silence to the utilization of
mail and wire fraud as copyright enforcement tools. One need only
contrast the infrequent and, with exception of the Congressional
reaction to McNally, technical amendments to the mail and wire fraud
statutes with Congress' exhaustive attention to developments affecting
copyright law.

[14] The government strenuously disagrees with me on this point.
However, even the dissenters in Dowling (Justice Powell and White) saw
the issue framed by the majority no differently than I do. As Justice
Powell characterizes the opinion: "The Court holds today that 18 U.S.C.
Sec, 2314 does not apply to this case because the rights of a copyright
holder are `different' from the rights of owners of other kinds of
property." Dowling, supra at 22 (Powell, J., dissenting)

[15] See Government's Memorandum at 8.

[16] The government's suggestion "that the legislative history of
copyright protection serves only to provide additional reason to
hesitate before extending Sec. 2314 to cover the interstate shipments in
this case'." and that Dowling simply held that "'Congress has not spoken
with the requisite clarity.'" seem to me equally applicable to the
analysis of Sec. 1343. Government's Memorandum at 8 (quoting Dowling,
supra at 221, 229).

[17] For example, a first offender who reproduces fewer than ten copies
of a computer software program in a one hundred and eighty day period is
subject to a maximum punishment of one year imprisonment 18 U.S.C. Sec.
2314(b)(3). The same prosecution under the wire fraud statute would
entail a maximum prison sentence of five years. As defendant also notes,
use of the wire fraud statute to punish criminal copyright infringement
would override the shorter three year statute of limitations of the
Copyright Act.

[18] In 1992, in hearings before the House Judiciary Subcommittee on
Intellectual Property and Judicial Administration, the Vice-President
and General Counsel of the Computer & Communications Industry
Association testified as follows: "There are millions of people with
personal computers to make copies. That is exactly one of the reasons I
think you want to be very careful. You do not want to be accidentally
taking a large percentage of the American people, either small business
or citizens, into the gray area of criminal law." Hearing on S. 893
(August 12, 1992) at p. 65.

[19] The issue presented in this case is one of infringement only.
Infringement is a technical concept describing interference with the
statutorily defined rights of a copyright holder. A scheme or artifice
to defraud, the object of which was to fraudulently obtain possession of
the copyright itself would, I believe, be clearly punishable under the
mail and wire fraud statutes. See Dowling, supra at 217 ("[The
infringer] does not assume physical control over the copyright, nor does
he wholly deprive the owner of its use").