_Response of Defense Counsel to the_
     _United States Attorney's Indictment of David LaMacchia_



     Sadly, the United States Attorney for Massachusetts,
Donald K. Stern, has chosen in this case to attempt to
exert control over the use of the Internet and computer
communication by an inappropriate use of *criminal* law.  It
is almost always inappropriate to use criminal prosecution,
as opposed to legislative deliberation, to mold the law in
new and gray areas, as this area most certainly is.  It
requires a stretching and bending of existing criminal
statutes never meant to be employed as the U.S. Attorney
seeks to employ them, which is precisely why, rather than
prosecuting an individual, he or the Department of Justice
should be asking Congress to determine, clearly and
unequivocally, what conduct is criminal and what conduct is
not.
     An indictment is particularly inappropriate in this
case.  In indicting David LaMacchia, a 20-year-old junior at
M.I.T., the U. S. Attorney and his staff are trying to brand
as a computer systems operator (a so-called "SYSOP" in
computer jargon) as a criminal, for what *other* people place
on, and take off of, a computer system that the SYSOP creates
and maintains but does not control.  It is not at all clear
that a SYSOP who neither controls what is placed on the
system nor profits one cent from any copyrighted software
that others upload to and download from the system (that he
and others create and operate) has committed *any* crime.  In
short, this case raises the hotly disputed question of
whether the operator of a "common carrier" may be held
criminally responsible for the manner in which others use his
communications system.  Obviously, the people who run the
telephone company and who publish newspapers should be
watching this case carefully, lest they find themselves
criminally responsible for misuses of their communications
media and systems.

     The United States Attorney is quoted in _The Boston
Globe_ of April 8, 1994, as saying that the role played by
young LaMacchia in this case demonstrates an "intent to
illegally distribute" software placed on and taken off the
system by others, and that this "takes this far beyond the
bounds of the First Amendment."  On the other hand, Harvard
Law School Prof. Laurence H. Tribe, widely acknowledged to be
the foremost constitutional scholar of our time, is quoted in
the same edition of the _Globe_ as describing this
prosecution as an "excessive" use of "the criminal justice
system to police the outer boundaries of property in these
gray areas, where it can't be alleged that someone is
deliberately profiting."  We believe that the outcome of this
case will vindicate the view of Prof. Tribe rather than the
less educated view of U.S. Attorney Stern and his assistants.

     If the government wishes to outlaw the activities in
which David LaMacchia is alleged to have engaged, it should
ask Congress to pass a statute clearly making such conduct
criminal.  We frankly believe that the Department of Justice
would have trouble convincing Congress to do so, because of
the troubling statutory, constitutional, and policy problems
involved.  So, instead, the U. S. Attorney will use this to
case as a vehicle to try to convince the federal courts to
make David LaMacchia into a felon by stretching and mangling
the meaning of certain existing criminal laws.

     David LaMacchia's conduct was not in violation of the
criminal law, and we are confident that the courts will agree
with us.  It is unfortunate that this young man -- among the
best and the brightest that our society produces -- will have
to suffer while this process goes forward.  Given the
explosion of violent crime and other criminal pathologies in
our society, one would think that the U. S. Attorney's staff
of lawyers and FBI agents would have better things to do with
their time and the taxpayers' money than to imitate guppies,
the fish that devour their own young.

     We and our client hope to have much more to say about
this case and its implications at that point in time when we
are able to say more.  Meanwhile, we ask that David LaMacchia
be accorded the presumption of innocence to which our
Constitution and laws entitle him.  We ask that all citizens
concerned with liberty and fair play follow this case closely
and then, at the end, ask some hard questions about the
motives and judgment of the prosecutors who have brought this
prosecution.
                         * * * * *
                              Harvey A. Silverglate
                              Silverglate & Good
                              89 Broad Street, 14th flr
                              Boston, MA 02110-3511
                              Tel (617) 542-6663
                              Fax (617) 451-6971
                              Internet:has@world.std.com


                              David Duncan
                              Zalkind, Rodriguez, Lunt &
                                   Duncan
                              65A Atlantic Avenue
                              Boston, MA 02110
                              Tel (617) 742-6020
                              Fax (617) 742-3269

                              Counsel for David LaMacchia

Dated:  April 8, 1994