[free-sklyarov] Generic reply to the "break into your house" comments

[James S. Tyre]

At 07:21 PM 7/24/2001 -0400, Neon Samurai wrote:
>On 24 Jul 2001, Klepht wrote:
>
>         What the DMCA does not take into consideration is intent.  In
>order for one to be guilty of a crime, one needs to have committed the
>actus reus (physical act) as well as have had the mens rea (mental element
>or intent).  It is understandable that copyright holders do not want their
>copyrights infringed upon; however, creating legislation to the effect
>that circumvention of any kind is illegal is absurd -- and this is what we
>have with Dmitry's case.
>
>         Surely, Dmitry did not have the intent of facillitating piracy,
>and he should therefore not be held to any criminal charges; however, it
>seems like prosecution vis-a-vis the DMCA has no consideration of the
>accused's intent, and instead treats the act as a strict liability
>offense, like a speeding ticket where guilt has nothing to do with whether
>you intended to speed.
>
>Best,
>
>Alex
>http://www.VerizonEatsPoop.com

You're correct that DMCA, like most all criminal laws, carries with it an 
intent (mens rea) requirement, but you've misstated what that requirement is.

The relevant intent is not the intent to break the law, but rather to do 
the act complained of.  If I intended to do the act I did (and other 
conditions are met) then I can be held criminally liable even if I was 
ignorant of the fact that my act was illegal - ignorance of the law is no 
excuse.  On the other hand, if I didn't intend to do the act, I somehow did 
it inadvertently, then I do not have the requisite intent, even if I knew 
that the act was illegal.  This is how criminal law intent generally works, 
my statement is not specific to DMCA.

"Some say that ignorance is bliss,
while others opine that ignorance is no excuse.
Therefore, I must conclude,
bliss is no excuse."

         -- J.S. Tyre, at some point during his misspent youth


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James S. Tyre                               mailto:jstyre at jstyre.com
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