This is a preview of how your content will look on export. To export the complete content in DOC format, click the blue export button in the upper right corner of this page.
Criminal
  • 1 17 U.S.C. 506

    1
    § 501. Infringement of copyright
    2

    (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A (a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

    3

    (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

    4

    (c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.

    5

    (d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111 (c)(3), the following shall also have standing to sue:

    6

    (i) the primary transmitter whose transmission has been altered by the cable system; and

    7

    (ii) any broadcast station within whose local service area the secondary transmission occurs.

    8

    (f)

    9

    (1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.

    10

    (2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122 (a)(2), to enforce that television broadcast station’s rights under section 338(a) of the Communications Act of 1934.

    11

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2584; Pub. L. 100–568, § 10(a), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 100–667, title II, § 202(3), Nov. 16, 1988, 102 Stat. 3957; Pub. L. 101–553, § 2(a)(1), Nov. 15, 1990, 104 Stat. 2749; Pub. L. 101–650, title VI, § 606(a), Dec. 1, 1990, 104 Stat. 5131; Pub. L. 106–44, § 1(g)(5), Aug. 5, 1999, 113 Stat. 222; Pub. L. 106–113, div. B, § 1000(a)(9) [title I, §§ 1002(b), 1011 (b)(3)], Nov. 29, 1999, 113 Stat. 1536, 1501A–527, 1501A–544; Pub. L. 107–273, div. C, title III, § 13210(4)(B), Nov. 2, 2002, 116 Stat. 1909.)

    12
    § 502. Remedies for infringement: Injunctions
    13

    (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

    14

    (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office.

    15

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2584.)

    16
    § 503. Remedies for infringement: Impounding and disposition of infringing articles
    17

    (a)

    18

    (1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable—

    19

    (A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;

    20

    (B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced; and

    21

    (C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court.

    22

    (2) For impoundments of records ordered under paragraph (1)(C), the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been impounded. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.

    23

    (3) The relevant provisions of paragraphs (2) through (11) of section 34(d) of the Trademark Act (15 U.S.C. 1116 (d)(2) through (11)) shall extend to any impoundment of records ordered under paragraph (1)(C) that is based upon an ex parte application, notwithstanding the provisions of rule 65 of the Federal Rules of Civil Procedure. Any references in paragraphs (2) through (11) of section 34(d) of the Trademark Act to section 32 of such Act shall be read as references to section 501 of this title, and references to use of a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or services shall be read as references to infringement of a copyright.

    24

    (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.

    25

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2585; Pub. L. 110–403, title I, § 102(a), Oct. 13, 2008, 122 Stat. 4258; Pub. L. 111–295, § 6(d), Dec. 9, 2010, 124 Stat. 3181.)

    26
    § 504. Remedies for infringement: Damages and profits
    27

    (a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—

    28

    (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

    29

    (2) statutory damages, as provided by subsection (c).

    30

    (b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

    31

    (c) Statutory Damages.—

    32

    (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

    33

    (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:

    34

    (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or

    35

    (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118 (f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

    36

    (3)

    37

    (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

    38

    (B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.

    39

    (C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

    40

    (d) Additional Damages in Certain Cases.— In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110 (5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

    41

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2585; Pub. L. 100–568, § 10(b), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 105–80, § 12(a)(13), Nov. 13, 1997, 111 Stat. 1535; Pub. L. 105–298, title II, § 204, Oct. 27, 1998, 112 Stat. 2833; Pub. L. 106–160, § 2, Dec. 9, 1999, 113 Stat. 1774; Pub. L. 108–482, title II, § 203, Dec. 23, 2004, 118 Stat. 3916; Pub. L. 111–295, § 6(f)(2), Dec. 9, 2010, 124 Stat. 3181.)

    42
    § 505. Remedies for infringement: Costs and attorney’s fees
    43

    In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

    44

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2586.)

    45
    § 506. Criminal offenses
    46

    (a) Criminal Infringement.— 

    47

    (1) In general.— Any person who willfully infringes a copyright shall be punished as provided  under section 2319 of title 18, if the infringement was committed— 

    48

    (A) for purposes of commercial advantage or private financial gain; 

    49

    (B) by the reproduction or distribution, including by electronic means, during any 180–day  period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a  total retail value of more than $1,000; or 

    50

    (C) by the distribution of a work being prepared for commercial distribution, by making it  available on a computer network accessible to members of the public, if such person knew or  should have known that the work was intended for commercial distribution. 

    51

    (2) Evidence.— For purposes of this subsection, evidence of reproduction or distribution of a  copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright. 

    52

    (3) Definition.— In this subsection, the term “work being prepared for commercial distribution”  means— 

    53

    (A) a computer program, a musical work, a motion picture or other audiovisual work, or a  sound recording, if, at the time of unauthorized distribution— 

    54

    (i)the copyright owner has a reasonable expectation of commercial distribution; and 

    55

    (ii) the copies or phonorecords of the work have not been commercially distributed; or 

    56

    (B) a motion picture, if, at the time of unauthorized distribution, the motion picture— 

    57

    (i) has been made available for viewing in a motion picture exhibition facility; and 

    58

    (ii) has not been made available in copies for sale to the general public in the United  States in a format intended to permit viewing outside a motion picture exhibition facility. 

    59

    (b) Forfeiture, Destruction, and Restitution.— Forfeiture, destruction, and restitution relating to  this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition  to any other similar remedies provided by law. 

    60

    (c) Fraudulent Copyright Notice.— Any person who, with fraudulent intent, places on any article  a notice of copyright or words of the same purport that such person knows to be false, or who, with  fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice  or words that such person knows to be false, shall be fined not more than $2,500. 

    61

    (d) Fraudulent Removal of Copyright Notice.— Any person who, with fraudulent intent, removes  or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more  than $2,500. 

    62

    (e) False Representation.— Any person who knowingly makes a false representation of a material  fact in the application for copyright registration provided for by section 409, or in any written statement  filed in connection with the application, shall be fined not more than $2,500. 

    63

    (f) Rights of Attribution and Integrity.— Nothing in this section applies to infringement of the rights conferred by section 106A (a).

    64

    (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2586; Pub. L. 97–180, § 5, May 24, 1982, 96 Stat.  93; Pub. L. 101–650, title VI, § 606(b), Dec. 1, 1990, 104 Stat. 5131; Pub. L. 105–147, § 2(b), Dec. 16,  1997, 111 Stat. 2678; Pub. L. 109–9, title I, § 103(a), Apr. 27, 2005, 119 Stat. 220; Pub. L. 110–403, title  II, § 201(a), Oct. 13, 2008, 122 Stat. 4260.)

  • 2 United States v. Moran, 757 F.Supp. 1046 (D.Neb. 1991)

    1

    757 F. Supp. 1046

    UNITED STATES of America, Plaintiff,
    v.
    Dennis MORAN, Defendant.

    No. CR 90-0-106.
    United States District Court, D. Nebraska.
    February 15, 1991.

    2

    [1047] Michael P. Norris, Asst. U.S. Atty., Omaha, Neb., for U.S.

    3

    Richard J. Dinsmore, Omaha, Neb., for Dennis Moran.

    4
    MEMORANDUM AND ORDER
    5

    RICHARD G. KOPF, United States Magistrate Judge.

    6

    The parties have consented to try this misdemeanor case before me. Trial was held on January 15, 1991, and briefs were received on January 23, 1991. I now find that the defendant is not guilty of the alleged willful infringement of a copyrighted video cassette in violation of 17 U.S.C. § 506(a).

    7
    I. FACTS
    8

    Dennis Moran (Moran), the defendant, is a full-time Omaha, Nebraska, police officer and the owner of a "mom-and-pop" movie rental business which rents video cassettes of copyrighted motion pictures to the public. On April 14, 1989, agents of the Federal Bureau of Investigation (FBI) executed a court-ordered search warrant on the premises of Moran's business. The FBI seized various video cassettes appearing to be unauthorized copies of copyrighted motion pictures, including "Bat 21," "Big," "Crocodile Dundee II," "The Fourth Protocol," "Hell-Bound: Hellraiser II," and "Mystic Pizza." The parties have stipulated that these six motion pictures are validly copyrighted motion pictures. The parties have further stipulated that each of the six motion pictures was distributed to Moran, with the permission of the copyright holder, between February 1, 1989, and April 14, 1989. The parties have further stipulated that at least one of the movies identified was reproduced by Moran onto a video cassette, without the authorization of the copyright holder, placed into inventory for rental, and subsequently rented.

    9

    At the time the FBI executed the search warrant, Moran was fully cooperative. He told the FBI agents he put the "duped" copies out for rental and held the "originals" back because he feared the "original" motion pictures would be stolen or damaged. Moran told the FBI agents at the time they executed the warrant that he believed this practice was legal as long as he had purchased and was in possession of the "original" motion picture. Moran further advised the FBI agents that he would affix to the "duped" copies title labels for the copyrighted motion pictures and a copy of the FBI copyright warning label commonly found on video cassette tapes. Moran [1048] advised the FBI agents that he put the title labels and FBI warning on the tapes to stop customers from stealing or duplicating the tapes.

    10

    Moran testified at trial. He indicated that he had been employed as an Omaha, Nebraska, police officer for approximately twenty-two-and-a-half years, including service as a narcotics investigator and as a bodyguard to the mayor of the City of Omaha. Moran has a reputation for honesty among his associates.

    11

    Moran testified that he began to "insure" copyrighted video cassettes, meaning that he duplicated copyrighted video cassettes which he had validly purchased from distributors, when he realized copyrighted tapes were being vandalized. Moran testified he was under the impression that "insuring" tapes was legal whereas "pirating" tapes was not. For practical purposes, Moran defined "insuring" versus "pirating" as meaning that he could duplicate a copyrighted tape provided he had purchased the copyrighted tape and did not endeavor to rent both the copyrighted tape and the duplicate he had made. Moran testified that he formulated his belief about "insuring" versus "pirating" when talking with various colleagues in the business and from reading trade publications. However, Moran was not able to specifically identify the source of his information.

    12

    There was no persuasive evidence that Moran made multiple copies of each authorized version of the copyrighted material. The evidence indicates that Moran purchased more than one copyrighted tape of the same movie, but the persuasive evidence also reveals that Moran made only one copy of each copyrighted tape he purchased. There was no persuasive evidence that Moran endeavored to rent both the copyrighted tape and the duplicate. When Moran made the unauthorized copy, he put the unauthorized copy in a package made to resemble as closely as possible the package containing the original copyrighted motion picture Moran had purchased from an authorized distributor.

    13
    II. LAW
    14

    Moran makes two arguments. First, Moran argues that the government must prove that he had the specific intent to violate the law, that is, he knew that what he was doing was illegal and he committed the act nevertheless. Secondly, Moran argues that he did not have the specific intent to violate the law and, as a consequence, should be found not guilty.

    15

    In pertinent part 17 U.S.C. § 506(a) punishes as a criminal any "person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain." Pursuant to 17 U.S.C. § 106(3), the owner of a copyright has the exclusive right to "distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." The "exclusive right" of the owner of a copyright is subject to a variety of exceptions. See 17 U.S.C. §§ 107-118.

    16
    A.
    17

    It must first be determined whether the word "willfully," as used in 17 U.S.C. § 506(a), requires a showing of "bad purpose" or "evil motive" in the sense that there was an "intentional violation of a known legal duty." Adopting the research of the Motion Picture Association of America, the government argues that the term "willful" means only "an intent to copy and not to infringe." Letter Brief of Government at 4 (citing United States v. Backer, 134 F.2d 533, 535 (2nd Cir. 1943); United States v. Taxe, 380 F.Supp. 1010 (C.D.Cal. 1974), aff'd, 540 F.2d 961 (9th Cir. 1976)). On the other hand, Moran argues that the use of the word "willful" implies the kind of specific intent required to be proven in federal tax cases, which is to say, a voluntary, intentional violation of a known legal duty. Defendant's Memorandum Brief at 1 (citing United States v. Cross, 816 F.2d 297, 300-01 (7th Cir. 1987); United States v. Heilman, 614 F.2d 1133, 1137-38 (7th Cir.), cert. denied, 447 U.S. 922, 100 S.Ct. 3014, 65 L.Ed.2d 1114 (1980); United States v. Wise, 550 F.2d 1180, 1194 (9th [1049] Cir.), cert. denied, 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977)).

    18

    The general rule is, of course, that ignorance of the law or mistake of the law is no defense to a criminal prosecution. However, when the term "willfully" is used in complex statutory schemes, such as federal criminal tax statutes, the term "willfull" means a "voluntary, intentional violation of a known legal duty." Cheek v. United States, ___ U.S. ___, 111 S.Ct. 604, 610, 112 L.Ed.2d 617 (1991) (holding in a criminal tax prosecution that a good faith misunderstanding of the law or a good faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable).[1] As the Court recognized in Cheek, id. at ___, 111 S.Ct. at 609-611, in United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78 L.Ed. 381 (1933), the Supreme Court said that:

    19
    Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct.
    20

    This was evidently so because "the proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax law." Cheek, ___ U.S. at ___, 111 S.Ct. at 609.

    21

    Apparently no case has compared and analyzed the competing arguments, i.e., whether the word "willfully" requires either a showing of specific intent, as suggested by Moran, or the more generalized intent suggested by the government. Indeed, a leading text writer acknowledges that there are two divergent lines of cases, one of which requires specific intent and another which does not. 3 M. Nimmer & D. Nimmer, Nimmer on Copyright, § 15.01 at 15-5 n. 13 (1990) (hereinafter Nimmer). As pointed out by the government, some courts have suggested that "willful" only means an intent to copy, not to infringe. Backer, 134 F.2d at 535; Taxe, 380 F.Supp. at 1017. On the other hand, as suggested by Moran, other courts have seemingly required evidence of specific intent. Heilman, 614 F.2d at 1137-38; Wise, 550 F.2d at 1194. At least two courts have specifically approved jury instructions essentially stating that an act of infringement done "willfully" means an act voluntarily and purposely done with specific intent to do that which the law forbids, that is to say, with bad purpose either to disobey or disregard the law. Cross, 816 F.2d at 300-01; United States v. Rose, 149 U.S.P.Q. 820 (S.D.N.Y. 1966) (quoted in Nimmer, supra, § 15.01 at 15-6 n. 13). None of the cases recognize that there are divergent lines of cases on this point, and none of the cases endeavor to explain why one line of cases is more compelling than the other.

    22

    I am persuaded that under 17 U.S.C. § 506(a) "willfully" means that in order to be criminal the infringement must have been a "voluntary, intentional violation of a known legal duty." Cheek, ___ U.S. at ___, 111 S.Ct. at 610. I am so persuaded because I believe that in using the word "willful" Congress intended to soften the impact of the common-law presumption that ignorance of the law or mistake of the law is no defense to a criminal prosecution by making specific intent to violate the law an element of federal criminal copyright offenses. I came to this conclusion after examining the use of the word "willful" in the civil copyright infringement context and applying that use to the criminal statute.[2] Wise, 550 F.2d at 1188 n. 14 (There is [1050] a general principle in copyright law of looking to civil authority for guidance in criminal cases).

    23

    In the civil context there is "strict liability" for infringement, even where the infringement was "innocent." United States v. Bily, 406 F.Supp. 726, 733 (E.D.Pa. 1975) (comparing civil and criminal copyright law). In this connection, a plaintiff in a civil case need not prove actual damages, but rather may seek what are called statutory damages. The term "willful" is used in the context of statutory damages, and it is instructive to compare the definition of the term "willful," as used in the civil context regarding statutory damages, with the definition of the term "willful" used in the criminal context.

    24

    In the statutory damage context, a civil plaintiff is generally entitled to recover no less than $250.00 nor more than $10,000.00 per act of infringement. 17 U.S.C. § 504(c)(1). But where the infringement is committed "willfully," the court in its discretion may increase the award of statutory damages up to a maximum of $50,000.00 per act of infringement. 17 U.S.C. § 504(c)(2). On the other hand, in the case of "innocent infringement," if the defendant sustains the burden of proving he/she was not aware, and had no reason to believe, that his/her acts constituted an infringement of the copyright, and the court so finds, the court may in its discretion reduce the applicable minimum to $100.00 per act of infringement. 17 U.S.C. § 504(c)(2). See H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 162-163, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5778-79.

    25

    As noted text writers have concluded, the meaning of the term "willful," used in 17 U.S.C. § 504, must mean that the infringement was with knowledge that the defendant's conduct constituted copyright infringement. Nimmer, supra p. 6, § 14.04B3 at 14-40.3-14-40.4 (citations omitted). Otherwise, there would be no point in providing specially for the reduction of awards to the $100.00 level in the case of "innocent" infringement since any infringement which was nonwillful would necessarily be innocent.

    26

    The circuit courts of appeal which have considered the issue have all adopted Nimmer's formulation with regard to the meaning of the word "willful" for purposes of 17 U.S.C. § 504(c)(2) and statutory civil damages. Cable/Home Communication v. Network Productions, 902 F.2d 829, 851 (11th Cir. 1990); Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir. 1988); RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 779 (8th Cir. 1988); Fitzgerald Publishing Co., Inc. v. Baylor Publishing Co., Inc., 807 F.2d 1110, 1115 (2d Cir. 1986). In other words, the term "willful," when used in the civil statutory damage statute, has consistently been interpreted to mean that the infringement must be "with knowledge that the defendant's conduct constitutes copyright infringement." Nimmer, supra p. 6, § 14.04B3 at 14-40.3-14-40.4.

    27

    There is nothing in the text of the criminal copyright statute, the overall scheme of the copyright laws, or the legislative history to suggest that Congress intended the word "willful," when used in the criminal statute, to mean simply, as the government suggests, an intent to copy. Rather, since Congress used "willful" in the civil damage copyright context to mean that the infringement must take place with the defendant being knowledgeable that his/her conduct constituted copyright infringement, there is no compelling reason to adopt a less stringent requirement in the criminal copyright context. Accordingly, I find that "willfully," when used in 17 U.S.C. § 506(a), means a "voluntary, intentional [1051] violation of a known legal duty."[3] Cheek, ___ U.S. at ___, 111 S.Ct. at 610.

    28
    B.
    29

    Having determined that the standard enunciated by the Supreme Court in Cheek, ___ U.S. ___, 111 S.Ct. 604, applies, it is important to recognize that the rule does not require that a defendant's belief that his conduct is lawful be judged by an objective standard. Rather, the test is whether Moran truly believed that the copyright laws did not prohibit him from making one copy of a video cassette he had purchased in order to "insure" against vandalism. In other words, the test is not whether Moran's view was objectively reasonable, but rather, whether Moran truly believed that the law did not proscribe his conduct. Cheek, ___ U.S. ___, 111 S.Ct. at ___. Of course, the more unreasonable the asserted belief or misunderstanding, the more likely it is that the finder of fact will consider the asserted belief or misunderstanding to be nothing more than simple disagreement with known legal duties imposed by the law, and will find that the government has carried its burden of proving knowledge. Id. at ___, 111 S.Ct. at ___.

    30

    Most of the government's argument that it proved beyond a reasonable doubt that Moran violated the criminal copyright statute, even if the word "willfully" is defined as Moran suggests, is based upon the assumption that Moran's beliefs must be "objectively" reasonable. As indicated above, Moran's beliefs need not have been objectively reasonable; rather, if Moran truly believed that he was not subject to the copyright laws, then his subjective belief would defeat a finding that he "willfully" violated the statute.

    31

    First, I note that I had an opportunity to observe Moran when he testified. Moran struck me as an honest, albeit naive, person. I was left with the definite impression that Moran was befuddled and bewildered by the criminal prosecution.

    32

    Second, although Moran is a local police officer of long standing, there is nothing in his background to suggest any particular sophistication about business matters, and there is no evidence to suggest that he has any particular knowledge about the intricacies of the copyright laws. When confronted by FBI agents upon the execution of the search warrant, Moran was entirely cooperative. On the day the search warrant was executed, he told his story in the same way he now tells his story.

    33

    Third, Moran said he had heard from others and read in various publications that it was legally appropriate to engage in the practice he called "insuring." Moran could not cite the specific source of his information. In this regard, I note that the copyright laws permit libraries and archives to replace a copyrighted article that is damaged, deteriorated, lost, or stolen, if the library or archives have, after reasonable effort, determined that an unused replacement cannot be obtained at a fair price. 17 U.S.C. § 108(c). While Moran obviously did not operate his business as a library or archives, the government's assertion that the practice of "insuring" is patently unreasonable is belied by the recognition that under certain circumstances certain users of copyrighted materials may lawfully engage in copying activity which is similar to Moran's conduct.

    34

    Fourth, Moran testified that he made only one copy of the original motion picture purchased from the authorized distributor. The government doubts his testimony, but offers no persuasive evidence to contradict [1052] it. Moreover, Moran testified that he never rented both the original copyrighted version of the video cassette purchased from the authorized distributor and the copy he made. Instead, he testified that he always held back the original motion picture. Once again, the government doubts this testimony in its brief, but offers no persuasive evidence to the contrary. Furthermore, the evidence indicates that Moran purchased more than one authorized cassette of a particular motion picture, but made only one duplicate for each authorized cassette purchased.

    35

    This evidence suggests that Moran was not acting with a willful intention to violate the copyright laws because if he had such an intention it would make absolutely no sense to purchase multiple authorized video cassettes and then make only one duplicate of each authorized cassette. It would have been far simpler, and certainly more lucrative, for Moran to purchase one authorized cassette of a particular motion picture and make multiple copies from the authorized version. In this way Moran would have had to pay only one fee. The fact that Moran seems to have consistently followed the practice of buying an authorized version, but making only one copy of it, suggests that he was acting in accordance with his belief that to duplicate an authorized version in order to "insure it" was lawful so long as only one copy was made and the authorized version and copy were not both rented.

    36

    Fifth, the government argues that Moran must have known that what he was doing constituted a copyright infringement because he had before him the FBI warning label and in fact affixed such labels to the unauthorized copies he made. In pertinent part, the FBI warning states, "Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted motion pictures and video tapes" (emphasis added). Moran explained that he thought these warning labels applied to the renting public, not to him. The use of the word "unauthorized" on the warning label suggested to Moran that vendors who had purchased an authorized version were not subject to the legal restrictions expressed in the warning to the extent that the practice of "insuring" was legal. As Moran suggests, the FBI warning label does not specifically address the claim of legality professed by Moran. Accordingly, Moran's failure to heed the warning label is not determinative.

    37

    Sixth, the government further argues that Moran's effort to place the unauthorized copy into a video cassette package displaying a label on its spine and an FBI warning label suggests a sinister motivation. I disagree. Moran's testimony, as I understood it, indicated that when he made a copy he endeavored to make the duplicate look like the original in all respects. After all, the whole purpose of the practice of "insuring" was to use the unauthorized copy in lieu of the original when renting to the public. It was perfectly consistent with Moran's view of the law to make the unauthorized copy look as nearly as possible like the authorized version.

    38

    In summary, when Moran's actions were viewed from the totality of the circumstances, the government failed to convince me beyond a reasonable doubt that Moran acted willfully. Moran is a long-time street cop who was fully cooperative with law enforcement authorities. He is obviously not sophisticated and, at least from the record, his business operation of renting movies to the public was not large or sophisticated. Rather, Moran's business appears to have been of the "mom-and-pop" variety. Moran's practice of "insuring," while obviously shifting the risk of loss from Moran to the copyright holder, was conducted in such a way as not to maximize profits, which one assumes would have been his purpose if he had acted willfully. For example, Moran purchased multiple authorized copies of the same movie, but he made only one unauthorized copy for each authorized version purchased. This suggests that Moran truly believed that what he was doing was in fact legal. I therefore find Moran not guilty.[4]

    39

    [1053] IT IS ORDERED that the Clerk of the United States District Court for the District of Nebraska shall, pursuant to Federal Rule of Criminal Procedure 32(b)(1), enter judgment in favor of the defendant, Dennis Moran, and against the United States of America on the court's finding that the defendant is not guilty.

    40

    [1] In other circumstances, the Supreme Court has also derived from the word "willfully" a requirement of specific intent. Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) (construing 18 U.S.C. § 242, dealing with violations of civil rights, as requiring specific intent in a federal criminal prosecution of local law enforcement officers who arrested a black for a state offense and then wrongfully beat him to death).

    41

    [2] The legislative history regarding the use of the word "willful" in the statutes criminalizing copyright infringement is not helpful. It has been a criminal offense to willfully infringe a copyright for profit since at least 1909. Copyright Act of 1909, ch. 320, 35 Stat. 1082 at § 28. With the exception of inserting the phrase "for purposes of commercial advantage or private financial gain" for the word "profit," a change thought not to be material, Nimmer, supra p. 6, § 15.01 at 15-1 n. 1, the present statute is nearly identical to the 1909 statute. 17 U.S.C. § 506(a) (1976). The legislative history of the 1976 revision of the criminal statute does not explain what Congress meant by the use of the word "willful." H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 163-164, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5779-80.

    42

    [3] The Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit, Instruction 7.02 at 291 (1989 Revised Edition) (West 1990) (hereinafter Manual), suggests that no instructions are recommended regarding the term "willfully" except in criminal tax cases and odometer fraud cases. The reason for this suggestion is that in most cases, as the Manual suggests, the words "voluntarily and intentionally" replace the word "willfully." Id. The Manual recognizes that in tax cases and odometer fraud cases "willfully" should be defined as, "An act is done 'willfully' if done voluntarily and intentionally with the purpose of violating a known legal duty." Id. (citations omitted). However, as the committee comments to the Manual suggest, there may be other statutes in which "willfully" requires specific intent. Id. This is one of those cases.

    43

    [4] At the close of the government's case, Moran moved for judgment of acquittal. I took his motion under advisement. Moran then offered evidence. Based upon the evidence submitted by the government and the evidence submitted by Moran, I find Moran not guilty in my capacity as a finder of fact. Therefore, I need not rule, and do not decide, whether the motion for acquittal should have been granted.

You've reached the bottom of your content preview.
To view the rest in your browser, click here.
To export the complete content in DOC format, click the blue export button in the upper right corner of this page.

(Note: If you view the entire playlist, any changes you've made to export settings will be lost. Large playlists may temporarily freeze your browser while loading, as well.)