We live in a world were physical media to just costly and harmful to corporate profit margins to produce. A world in which video game producers and book publishers are actually trying to make lending, trading or reselling media illegal.

While the supreme court did tell copyright holders who felt the loaning, trading or reselling physical media was piracy to pound sound in 2013, digital media is a little different as it is also protected with a username and password that is required to access the media. Is often times also protected with an end user licenses agreement and terms of service that expressly forbid any sort of password sharing.   

 David Nosal, had been fired by his employer and his log in credentials were revoked. He then borrowed a friend’s log in credentials so that he could continue accessing the company database for personal profit.  It is my opinion that what David Nosal did was wrong, and he and his friend should both spend time in prison, a court of law also shared this opinion.  The case was appealed and went up to the 9 circuit court.

The defense argued that sharing passwords is not a crime. They also argued that enforcing the no sharing passwords clause as found in the end user license agreement would inadvertently and incorrectly classify millions of Americans as hardened criminals.

Just last week the 9th circuit court ruled in “United States Vs. David Nosal” that password sharing is in fact a crime.   It is important to understand that the presiding judges did not intent to make criminals out of millions of unsuspecting Americans; However, turning millions of ordinary Americans into criminals is exactly what the ruling does, and it is a big deal. According to Judge Reinhardt the computer fraud and abuse act of 1994 is written so broadly that it does not distinguish password sharing between family and close friends from criminal activity, as all password sharing results unauthorized access.

Judge Reinhardt writes in his dissent “We would not convict a man for breaking and entering if he had been invited in by a houseguest, even if the homeowner objected. Neither should we convict a man under the CFAA for accessing a computer account with a shared password with the consent of the password holder”.

The Judge goes on to state “It is thus necessary to consider the potential breadth of subsection (a)(2)(C) if we construe “without authorization” with less than the utmost care. Subsection (a)(2)(C) criminalizes nearly all intentional access of a “protected computer” without authorization.3 A “‘protected computer’ is defined as a computer affected by or involved in interstate commerce—effectively all computers with Internet access. See Nosal I, 676 F.3d at 859. This means that nearly all desktops, laptops, servers, smart-phones, as well as any “iPad, Kindle, Nook, X-box, Blu-Ray player or any other Internet-enabled device,” including even some thermostats qualify as “protected.”  

Judge Reinhardt sums up the problem “It criminalizes a broad category of common actions that nobody would expect to be federal crimes. Looking at the fallout from the majority opinion, it is clear that the decision will have “far-reaching effects unintended by Congress.”  Judge Reinhardt point is simple; do we really want to make password sharing a crime when so many companies could claim that password sharing is causing financial harm.

Consider the following scenarios in which a business could argue that sharing a password has caused them finical harm.

Your five-year-old daughter is listening to Disney BeBop 16 on a fathers Amazon music account, if she has not purchased her own copy, under her own account that is theft as amazon dose not allow sharing of an account with family in their terms of service.

You and your partner share a Facebook account although it is expressly forbidden to do so in the TOS.

Blizzard find two college dorm roommates share a World of Warcraft. In WOW’s prime if just 5% of players shared an account with a friend or partner it would have cost Blizzard billions in lost revenue.

A husband logs into his wife’s personal Bank of America account and notices she is short on funds; he transfers money into her account for so that an outstanding check wont bounce resulting in BOA not being able to levy $300 in overdraft fees. This could potentially be costing BOA billions every year.

Do we as a society think that sharing with in the immediate family and close friends should be illegal.

Now no doubt some will say that my examples are extreme, and out of context.   Yes, they are extreme but out of context?  Well I for one disagree.  These are the very business that argued before the supreme court of America that the ability to sell used video games, movies, books or music should be illegal as it harmful to their business in 2013. These companies’ then decided that the consumer was no longer interested in physical copies of movies, books, videogames, or music. These content producers have quickly and quietly been moving from a physical platform to a digital platform with a TOS explicitly forbids sharing products and password sharing. Business that are now selling products that once purchased cannot be sold, traded or even given away. Copy's that according to the many EULA’s and TOS can only be accessed by one single individual and cannot even inherited by the purchaser’s children upon the purchaser’s death.  Think about that for a moment. Do we really believe that business will not jump at the chance to prosecute even just a few password sharing family just to set an example?