Jan de Wit, aka OnTheFly, infamous author of the Anna Kournikova worm, has lost his appeal against his sentence for creating and distributing the prolific worm.

An appeals court in Leeuwarden yesterday upheld a 150 hours of community service order imposed by a Dutch district court last September. The 22-year old appealed the verdict, fearing that his "conviction could hamper his career", Dutch IT news service Webwerld reports. He now works in a computer shop.

Theo Jansen, de Wit's lawyer, expressed disappointment at the court's decision.

"I hoped that he would be acquitted. My client never had the intention to do any damage," said Jansen, according to Webwerld. "The prosecution showed a letter from the FBI saying that damage had been done. But the damage was not specified in any way."

Funny that. The Kournikova virus, released in February last year, was one of the most prolific ever produced. It promised racy pictures of the Russian tennis pin-up but delivered only misery for businesses worldwide, placing a grave load on email systems as it spread.

Days after its release, de Wit came forward to admit his role to the authorities.

Dutch police charged de Wit with spreading data into a computer network, with the intention of causing damage. The charges carried a maximum sentence of four years in prison and a fine of 100,000 guilders ($41,300).

At his trial last September, de Wit admitted creating the worm using a virus creation toolkit but told the court when he posted the virus to a newsgroup he did it "without thinking" and "without overseeing the consequences". He denied any intent to cause damage.

The court didn't agree.

As we reported at the time, a judge ruled that de Wit "was not a layman in the field of computer viruses. He works in a computer store and collected viruses - about 7,200, according to himself. The defendant must have been very aware of the consequences of his acts. The virus he spread was a hindrance, causing worry and annoyance among Internet users worldwide."

The court confiscated de Wit's CD-ROM virus collection.

To press for a lengthier sentence the FBI submitted evidence to the Dutch court, suggesting that $166,000 in damages was caused by the worm, based on reports of damage from 55 firms. However the court felt the FBI report didn't give enough details, and also felt that de Wit's position as a first-time offender who gave himself up was in his favour.

A 150 hours of community service order was imposed and this is now likely to stand, after Jansen (de Wit's) lawyer said his client was unlikely to take the case any further. ®

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