The U.S. Court of Appeals for the Sixth Circuit recently affirmed a defendant’s criminal conviction under the Digital Millennium Copyright Act for trafficking technology that modifies technological controls in video game consoles, despite the jury receiving an admittedly imprecise instruction on the “willfulness” of the defendant’s conduct.  USA v. Reichert, Case No. 13-3479 (6th Cir., Mar. 28, 2014) (Griffin, J.) (Donald, J., dissenting).

Jeffrey Reichert moderated an online web forum that discussed and gave instruction on how to modify video game consoles through the installation of “modification chips.”  Modification chips circumvent the technology controls in the console so that users may play pirated video games.  In 2007, Reichert sold a modified Nintendo Wii gaming console to an undercover agent for a $50 profit.  Reichert was subsequently charged under the anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. §1201, which prohibit trafficking for financial gain technology whose primary function is to sidestep access controls that protect copyrighted works.  In order for criminal liability to attach, prosecutors must prove that the violation of the DMCA was “willful.”  At trial, the jury was instructed that an act is done willfully if it is done “voluntarily and intentionally with the intent to do something unlawful,” even if the wrongdoer is not aware of the specific law or rule that is being violated.  The jury was also instructed that willfulness can be determined if it believed, beyond a reasonable doubt, that the defendant “deliberately ignored a high probability that he was trafficking in technology primarily designed to circumvent technological measures” in the video game consoles.  The jury convicted Reichert of willfully violating the DMCA and he was given an enhanced sentence due to the jury’s belief that the crime was facilitated by Reichert’s special technical skills.  Reichert appealed.

On appeal, Reichert objected to the implementation of the deliberate ignorance instruction, which he contended informed the jury that defendant’s conduct was a willful violation of the DMCA if he knew that he was trafficking in the technology, as opposed to knowing that his conduct in trafficking such technology was illegal.  While the court acknowledged that the challenged language in the jury instructions, without more context, was “mildly imprecise,” the court reasoned that the jury instruction as a whole was proper.  The challenged language was situated between two instructions that conveyed the stricter requirements of the willfulness standard, including “the intent to disobey or disregard the law.”  Moreover, immediately after giving the challenged instruction to the jury, the district court repeated that in order to find willfulness, the jury must find beyond a reasonable doubt that Reichert “was aware of a high probability that he was violating the Digital Millennium Copyright Act, and that Defendant deliberately closed his eyes to what was obvious.”  Thus, the court ultimately found the jury instructions on the issue of willfulness to be proper and affirmed the district court’s conviction.

In dissent, Circuit Judge Donald disagreed that the misstatement in the jury instructions was harmless to Reichert’s defense, especially because the DMCA’s anti-circumvention provision is subject to varying interpretations.  Some courts (including the 6th Circuit) have held that circumvention technologies designed for purposes other than copyright infringement are not prohibited by the DMCA.  On the other hand, the U.S. Court of Appeals for the Ninth Circuit broadly construes the anti-circumvention provision in a manner that may even prohibit technologies with only an incidental relation to copyright infringement.  Judge Donald also reasoned that because there are many non-infringing uses of modification chips, the legal status of modification chips as applied to video game consoles is “not entirely clear.”  Judge Donald held that due to the ambiguities associated with the anti-circumvention provision and its application to modification chips, proof that Reichert knew his conduct was unlawful is crucial to a conviction.  Moreover, evidence from the record did not support a contention that Reichert knew his conduct was illegal, as he openly advertised his “business” and expressly stated that modification chips for game consoles are a legal “gray area.”