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posted by n1 on Tuesday July 07 2015, @08:03AM   Printer-friendly
from the banking-conduct-that-warrants-prosecution dept.

The New York Times and The Register report that former Goldman Sachs programmer Sergey Aleynikov's conviction for "unlawful use of secret scientific material" has been overturned:

[...] celebration may not last long. State prosecutors in Manhattan have already indicated they may appeal the decision issued Monday, which threw out a jury's verdict. Once before, Mr. Aleynikov had believed he was in the clear, when a federal appeals court overturned his conviction under a federal corporate espionage law in 2012. The appellate court ruled that federal prosecutors in Manhattan had misapplied the law, and it ordered Mr. Aleynikov to be immediately released from a federal prison.

Less than a year later, however, Mr. Aleynikov was back in court defending himself, after state prosecutors in Manhattan charged him with violating state computer-theft-related laws. Now Justice Conviser — much like the federal appellate court before him — ruled that the decades-old state law that Mr. Aleynikov was convicted of violating did not apply to the accusations against him.

Justice Conviser said he did not find sufficient legal evidence to support the jury's conviction in May, which came after eight days of deliberation and two dozen requests for testimony to be read back or the statute's arcane terminology to be explained. He said the jury's confusion had been understandable, given that the "unlawful use of secret scientific material" criminal statute that Mr. Aleynikov was charged with violating was enacted in 1967 and predates much of the digital age. The judge said the state law was out of step with modern electronic communications and needed to be amended. He said that if prosecutors wanted to criminalize the kind of conduct Mr. Aleynikov engaged in when he downloaded portions of Goldman's source code onto his personal computer before leaving for a new job in June 2009, they should petition the Legislature to either amend the statute or pass a new law.

"We update our criminal laws in this country, however, through the legislative process," Justice Conviser said. "Defendants cannot be convicted of crimes because we believe as a matter of policy that their conduct warrants prosecution." A conviction on a charge of unlawful use of secret scientific material required prosecutors to prove that Mr. Aleynikov had made a "tangible" reproduction of the files he downloaded. But in his ruling on Monday, Justice Conviser said prosecutors had not submitted any evidence that the source code downloaded by Mr. Aleynikov "could be touched" or had "physical form," which is the essence of something being tangible. [...] The judge noted that the District Attorneys Association of the State of New York supported several legislative proposals to "modernize" the state's criminal laws with regard to computer crime.

Here is our previous story on Aleynikov's conviction.

 
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  • (Score: 4, Informative) by MrGuy on Tuesday July 07 2015, @02:46PM

    by MrGuy (1007) on Tuesday July 07 2015, @02:46PM (#206126)

    As much as the RIAA/MPAA would like us to forget, copyright infringement is PRIMARILY a civil matter in the US - it's a dispute between parties, and can lead to civil sanctions such as disgorgement, injunctive relief (such as impounding offending goods), etc. It's why a DCMA takedown doesn't come with a fine.

    That's not to say that copyright infringement CAN'T be criminal (remember the FBI warning about pirating your old VHS tapes?) However, the law here is fighting the last war (bootlegging copyrighted content), and doesn't appear (IANAL) to apply terribly well in this situation. The criminal law around copyright (especially the actions that rise to the level of a felony) tend to be around running a significant for-profit enterprise around copyright infringement (for example, creating 1000 bootleg CD's to sell for $5 each from the back of a car). And many of the laws around "what rises to a felony?" specifically talk about reproductions of copyrighted audio or audio visual material, and talk about distribution (or at least intent to distribute) as a major factor.

    In this case, the accused didn't "distribute" the copyrighted material - he took a copy for himself. You could argue he did so with the intent to profit from his infringement, but even that's a little squirrely - he didn't intend to profit DIRECTLY from infringement (e.g. by selling the code). Instead, he planned to profit by USING the infringing code to guide his business decisions. That's not exactly the same. And in any case, while his intent might have been profit, it's not clear that he actually DID profit - it appears he was stopped before he used the code.

    This where the judge seems to be coming down - what Mr. Aleynikov did was clearly unauthorized, and done with bad intent, but under the law, it doesn't constitute criminal behavior, because the law hasn't caught up to the kinds of bad behavior that's possible today that wasn't anticipated when the current laws were written.

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  • (Score: 2) by Joe Desertrat on Tuesday July 07 2015, @05:42PM

    by Joe Desertrat (2454) on Tuesday July 07 2015, @05:42PM (#206175)

    This where the judge seems to be coming down - what Mr. Aleynikov did was clearly unauthorized, and done with bad intent, but under the law, it doesn't constitute criminal behavior, because the law hasn't caught up to the kinds of bad behavior that's possible today that wasn't anticipated when the current laws were written.

    Recent history suggests that when the law attempts to catch up things will be worse for all of us, except the industry whose lobby which manages to get its version of the law passed.