Re: [DMCA-Activists] MPAA draft state super-DMCA amendment

[C. Scott Ananian]

On 3 Apr 2003, David Turner wrote:

> The primary change is the addition of "with the intent to defraud a
> communication service provider" to the beginning of the section which
> defines offenses.

Can someone with legal expertise comment on the legal definition of
"defraud"?  I.e. is a monetary transaction necessarily involved?  Perhaps
it is impossible to defraud a television broadcast provider if you do not
pay to receive the broadcast? [Cable companies can still be defrauded.]

It *seems* to me that the 'defraud' language just makes whatever
terms-of-service/service-agreement/contract your 'telecommunications
provider' (possibly read, "website") easily enforceable.  This means that,
for example, click-through agreements could be enforced, and using a
technological means to bypass (say, looking at the HTML source and
determining a direct URL) would be a criminal act.  This seems suspect
because it is potentially an end-run around whatever other contract law
would normally govern the transaction.

Potentially this language makes you innocent if your friend uses your NAT
to "steal" service.  *You* did not have the intent to defraud, even if
your friend did.

"Intent" is a slippery slope.  Could this make DeCSS legal, in that (in
my case at least) I did not possess/distribute/etc the code with "intent
to defraud".  Presumably watching my own movies is not defrauding the
communication service provider.  There's a big difference between "code
that may be used to defraud" and "intent to defraud".

But perhaps there is a more specific legal meaning of defraud.  I'd like
to know before I speculate further.
 --scott

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