If criminals are criminals because they seek profit, what do you do if you want to prosecute people for acts they commit with no intent to make money? You change the law.

Back in May of 2001, two federal prosecutors wrote “Novel Criminal Copyright Infringement Issues Related to the Internet” (David Goldstone and Michael O’Leary, USA Bulletin, May 2001) to provide Department of Justice (DOJ) lawyers with guidance in prosecuting criminal copyright infringement  cases.  The memorandum is already so dated that much of its discussion seem almost naive (about, for example, the online posting of copyrighted materials).  Nevertheless, it points out one more way that the change of the material reality governed by the law requires changes in the law.  Typically, non-violent crimes are illicit efforts to make money.  Thus, criminal statutes against non-violent crimes almost always require prosecutors to prove the defendants intended to profit from their allegedly illegal activities.  But, as the DOJ memorandum points out, the law relating to online copyright infringement needed to be changed because of a remarkable new wrinkle: many defendants committing their alleged acts of criminal copyright infringement via the internet do so without any intention or hope of gain:

Infringement without profit motive is far more common in cases of Internet-based copyright infringement than it is in the physical world. Until recently, the prosecution was required to prove that copyright infringement was done willfully and for commercial advantage or private financial gain. Now the law provides for prosecution in the absence of these monetary considerations.