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With much fanfare last spring, federal prosecutors in Chicago announced they had indicted 17 people who called themselves “Pirates with Attitude.” The group, including former employees of Microsoft Corp. and Intel Corp., were charged with stealing thousands of software programs, many of which became widely available in cyberspace. As the May 7 trial date approaches, defense attorneys maintain that a jury will agree that their clients are not proper targets of a criminal prosecution. While federal laws may have been “technically” broken, they argue, the defendants are nothing more than a loosely connected group of young Internet fanatics who simply believed that all basic software offerings in cyberspace should be free to the public. Besides, they say, they gained nothing personally. But prosecutors say greed is not the issue. They say the law under which the case is being prosecuted, the 1997 No Electronic Theft (NET) Act, does not require proof that the defendants gained economically in order to prove copyright infringement. Finally brought to justice, prosecutors say, is the “oldest and most sophisticated” band of software pirates in Internet history — one that allegedly inflicted untold millions of dollars in damage upon its corporate victims. Besides the involvement of Microsoft and Intel, the upcoming trial is compelling for a number of other reasons. It will be the first brought under the NET Act, which was intended by Congress to help law enforcement officials stem the software industry’s estimated $13 billion in annual losses inflicted by Internet pirates, many of whom, experts agree, are not seeking to profit from their exploits. Federal officials say that, so far, there have been only six prosecutions filed under the NET Act, including other cases in San Francisco and Detroit. The outcome of the Chicago case is especially important to the software industry because “these and other so-called ‘eccentric philanthropists’ ” need to be told at last by the courts “ that they are not engaging in a mere sport,” says Bob Kruger, vice president of enforcement for the Washington, D.C.-based Business Software Alliance. But a successful prosecution is also important to federal law enforcement officials responsible for enforcing the NET Act. This case will “demonstrate the FBI’s ability to successfully investigate very sophisticated online criminal activity,” says Kathleen McChesney, special agent in charge of the FBI’s Chicago office. THE INDICTMENT The defendants are accused of operating a sophisticated, almost military-like organization called “Pirates with Attitude.” Prosecutors claim in one single-count indictment that the defendants secretly agreed among themselves to reproduce or distribute copyrighted software from the largest U.S. software companies without the companies’ permission. The government says that by agreeing to this and by taking some overt act in furtherance of that agreement, they illegally conspired to violate the NET Act. Sometimes, prosecutors say, corporate insiders allegedly played a key role. For instance, former Microsoft employee Justin Robbins, 24, of Charlotte, N.C., was accused of helping a co-conspirator obtain a prerelease version of Microsoft Windows 2000. And, John Geissberger, a 37-year-old ex-Intel technical marketing engineer from Columbia, S.C., is accused of helping other defendants obtain Intel hardware that would expand their ability to store pirated software. “The presence of company employees would indicate to us a whole organized network was at work and not just an individual doing this as a mere hobby,” Kruger says. According to the indictment, the defendants were recruited as early as 1992 and assigned various designations within the organization. Periodic promotions from “courier” to “supplier” to “council member” were allegedly based on one’s contributions to the group’s unlawful objectives. The Pirates with Attitude allegedly maintained secret sites for the transfer of software files and stored libraries of pirated software. The longest-running site, located at the University of Sherbrooke in Quebec, was known as “Sentinel” and allegedly was operated from 1995 until January 2000. If face-to-face contact was limited between the co-defendants, the prosecution’s case maintains that they communicated often via private Internet chat groups. Boston area native Robin Rothberg, 32, a one-time NEC Technologies Inc. employee, is accused of being the ringleader who controlled access to the Sentinel site through NEC’s Internet service provider, Zenith Data Systems, in Buffalo Grove, Ill. While Rothberg was operating Sentinel, the indictment states, he allegedly recruited two unidentified individuals affiliated with the University of Sherbrooke who, in March 1999, began cooperating with law enforcement authorities. The FBI took possession of the Sentinel computer the following January, but not until thousands of gigabytes of software belonging to Microsoft, Adobe, Norton, Oracle, IBM, Lotus and Novell had allegedly been uploaded and downloaded, prosecutors claim. THE EVIDENCE In announcing the indictments last spring, Chicago’s U.S. Attorney, Scott R. Lassar, conceded the defendants might not have profited directly from their conduct. But he emphasized that the NET Act had made a profit motive irrelevant. Lassar also had given the impression that, in addition to the testimony of the two Canadian informants, the defendants themselves had supplied the prosecution with much of the evidence to be presented against them at trial by making incriminating statements against one another. A Net Act conviction, he says, could trigger a maximum penalty of five years in prison and a $250,000 fine. But perhaps most worrisome to the defense lawyers, says sole practitioner Steven Shobat, is the e-mail-like “chat” group communications obtained by federal investigators. “Without this evidence, the indictments would have to be dismissed,” he says. U.S. District Court Judge Matthew F. Kennelly has denied all defense motions to suppress the prosecution’s key evidence, as well as a joint motion challenging the NET Act’s constitutionality. Despite its evidence, the prosecution will not necessarily have an easy time proving its case. Shobat notes that it is common in a business conspiracy trial for multiple defendants to emphasize the prosecution’s need to prove that each individual defendant had agreed to be part of a “larger, general conspiracy” to commit a crime. Also likely to be tested by one or more of the defendants, he says, is the prosecution’s ability to prove they possessed the still-required “intent” to infringe someone else’s copyright. Moreover, although a profit motive is no longer an element of the copyright infringement crime, notes Allan A. Ackerman, a criminal defense lawyer, the absence of personal greed should strike a sympathetic chord with the jurors and judge. So far, the weight of the government’s case and potential jail term has persuaded two of the original co-defendants, including Geissberger, to plead guilty. Privately, several defense attorneys concede they expect one or more additional defendants to enter plea bargains before the May 7 trial. A spokesman for the U.S. Attorney’s Office in Chicago declined to comment.

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