Dozier Internet Law has fought many a battle opposing Microsoft in litigation and I always thought of them as being very reasonable, measured and practical. So it came as a surprise to see them trumpeting a $100,000 criminal fine levied against Carmelo Cerrelli for criminal contempt of court for selling counterfeit software. Microsoft already had a $700,000 civil judgment against him and the criminal court charges apparently stemmed from the civil judgment which typically includes injunctive relief prohibiting further copyright infringement. Apparently the defendant didn't read the court order. Or maybe he did. Anyway, he now has a criminal record and a huge fine to pay. And what is the penalty for intentionally failing to pay the fine? Jail. At Dozier Internet Law we've negotiated many a settlement with Microsoft and others in which civil legal issues are dealt with by injunctions. Now, those injunctions are being used to, in effect, turn civil liability into criminal misconduct.
In Colorado, a man accused of making unflattering online comments on Craigslist has been charged with two counts of what is being reported as "criminal libel". Once again a civil matter (defamation or privacy violations) has morphed, albeit a bit more directly, into a criminal case and a risk of incarceration of up to 18 months in jail. These charges stem from an 1800's era law that the Court will likely quickly conclude is unconstitutional on its face. Mere words, absent a clear and present danger or, in some instances, a real ability to carry through on a threat of physical violence, cannot subject someone to criminal prosecution. And this law sounds more like a privacy statute that today exists in some states as a civil law affording civil relief. If you read the law under which this prosecution is proceeding it is not a defamation or libel statute at all. There is no falsity requirement. You could be telling the truth and get prosecuted because of the impact of the disclosure. At least that is the argument that will come from the lawyer for the defendant.
What's going on here? Is frustration with the perceived lawlessness of the web leading to an ever growing desire to step up the attacks on the aggressors? Are our civil courts so broken that the only recourse is a threat of incarceration? Dozier Internet Law has been in the middle of some interesting criminal cases dealing with what many would consider to be purely civil matters. This is a slippery slope prosecutors and police departments take when they start interjecting themselves into the online world of scofflaws and miscreants.