Good News Day in the Electronic World

First, the Creative Commons is up and running. The organization will hopefully give the creative community more flexibility in thinking about how to copyright and license their works than the established practices we're familiar with today. I hope that in time we'll find a greater proportion of creative works available for a greater variety of legal uses.

Second, as everyone knows by now, the ElcomSoft verdict is in -- not guilty. I think the judge gave sensible jury instructions, but the prosecution may be able to assail the instruction that in order to convict, the jury would need to find "that company representatives knew their actions were illegal and intended to violate the law." (Quoting the CNet news article, not the jury instructions themselves, which I haven't read.) That instruction requires a specific intent to break the law, which I thought is usually a higher standard than "wilfulness," but my experience with criminal law is a little thin. The instruction may have set the bar for conviction a bit high, but I haven't read enough jury instructions to think of alternatives that wouldn't have set the bar too low. Black's Law Dictionary (7th ed.), which is not legal authority but is instructive, defines "wilful" as "Voluntary and intentional, but not necessarily malicious," (p. 1593) but refers to Perkins & Boyce on Criminal Law (1982), who point out the dispute between those who say that wilfulness means only that the act be purposeful and those who say that the purpose be a specifically bad purpose or coupled with "evil intent." I think that setting the bar higher makes sense with a law that can be so easily violated, and I hope that the decision is consistent with other relevant federal jury instructions.