Internet Software Piracy Is Not Fair Use

The case arose from the indictment for conspiracy to commit copyright infringement of Jason Slater and Christian Morley, members of an organization called “Pirates With Attitudes” (“PWA”), a group dedicated to unauthorized Internet dissemination of copyrighted software. The FBI disbanded PWA and in 2000, Slater, Morley and 15 other PWA members were indicted under 17 U.S.C. '506(a)(2), 18 U.S.C. '371 and 18 U.S.C. '2319(c)(1). Slater pled guilty, but Morley stood trial and was convicted by a jury. On appeal, the sole issues were: 1) whether the jury should have been instructed on the fair use doctrine and 2) whether the U.S. District Court for the Northern District of Illinois properly evaluated the monetary value of the loss for the purpose of applying the U.S. Sentencing Guidelines (“U.S.S.G.”).

Organized in the 1990s, PWA existed to make large amounts of copyrighted software freely available over the Internet. Although PWA members did not pay money for access to the software, they contributed either their special access to the software (“suppliers”), their ability to delete internal copyright protection from the software code (“crackers”), their ability to test and add descriptive information to the software (“packagers”) or their skills in uploading the pirated software to special PWA Internet sites (“couriers”). The indictment focused on PWA's “Sentinel” site. The Sentinel site was operated by a university professor who hid the computer hardware in a closet on campus, operating it without the university's knowledge or authorization.