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U.S. v Reichert

Case No. 13-3479 (C.A. 6, Mar. 28, 2014)

Jeffrey J. Reichert appeals his criminal conviction and sentence under the Digital Millennium Copyright Act (the “DMCA”) asserting three grounds: (1) that the jury received an inaccurate “deliberate ignorance” instruction that had the effect of negating the requirement that Reichert’s conduct be a “willful” violation of the DMCA; (2) that the exclusion of a defense witness’ testimony violated Reichert’s constitutional right to present a defense; and (3) that he was improperly assessed a “special skills” sentencing enhancement under U.S.S.G. § 3B1.3. We hold that the jury instructions as a whole properly stated the law, the excluded testimony was not so vital to Reichert’s defense that its exclusion caused him constitutional injury, and Reichert’s self-taught technical expertise merited a § 3B1.3 enhancement. We therefore affirm.

I.



“Congress enacted the DMCA in 1998 to comply with international copyright treaties and to update domestic copyright law for the online world.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). In large part, the DMCA was intended to give copyright owners additional means to protect copyrighted materials in the digital age. Although copyright owners often attempted to protect digitized materials behind digital passwords or encryption codes, “[p]rior to the DMCA, a copyright owner would have had no cause of action against anyone who circumvented any sort of technological control, but did not infringe [the copyright].” Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1195–96 (Fed. Cir. 2004). Due to the ease of digital piracy, copyright owners feared that the ability to pursue only infringers, rather than those who “picked the lock” and enabled the infringement to occur in the first place, was inadequate to protect their copyrighted material. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001).

In response to this problem, the DMCA gave copyright owners a remedy against those who did not themselves infringe a copyright but instead circumvented technological controls and thereby enabled others to infringe. It did so by creating both “circumvention liability for digital trespass under [17 U.S.C.] § 1201(a)(1),” and “trafficking liability under [17 U.S.C.] § 1201(a)(2) for facilitating such circumvention.” Chamberlain Group, 381 F.3d at 1196. Thus, the DMCA “targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools),” even though it “does not concern itself with the use of those materials after circumvention has occurred.” Corley, 273 F.3d at 443; see also MGE UPS Sys., Inc. v. GE Consumer & Indus., Inc., 622 F.3d 361, 366 (5th Cir. 2010). Circumventing or trafficking in circumvention tools in violation of § 1201 is a criminal offense if it is committed “willfully” and for commercial or private financial gain. 17 U.S.C. § 1204(a).
 

 

Judge(s): Richard Griffin
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Constitutional Law , Criminal Justice
 
Circuit Court Judge(s)
Bernice Donald
Richard Griffin
John Rogers

 
Trial Court Judge(s)
Donald Nugent

 
Appellant Lawyer(s) Appellant Law Firm(s)
Darin Thompson Office of the Federal Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Robert Kern U.S. Department of Justice
Chelsea Rice U.S. Department of Justice

 

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requirement may, under certain circumstances, resolve potential ambiguities. see vill. no. 13-3479 knowledge. no one can avoid responsibility for a crime by deliberately having discerned no reversible error, we affirm reichert’s conviction and available software and hardware devices are embedded with tpms designed to achieve familiarity with desktop publishing that was present in godman. see united states v. to its functionality. like other circumvention technologies, mod chips can serve both also united states v. ross, 502 f.3d 521, 527 (6th cir. 2007) (“no single provision of game console components was substantially more difficult to acquire than the mere a defendant “abused a position of public or private trust, or used a special skill, in a technologies, inc., 381 f.3d 1178, 1195–96 (fed. cir. 2004). due to the ease of digital microsoft corp. v. at & t corp., 550 u.s. 437, 458 (2007) (quoting universal city sentence. godman, 223 f.3d at 323 (emphasis added). nevertheless, we underscored that, to plaintiff-appellee, “willfully,” when used in a criminal statute, generally refers to conduct that involves “a works. id. indeed, the circuit split is representative of an ongoing debate over the reaching its decision.” united states v. burchard, 580 f.3d 341, 345 (6th cir. 2009); see federal law . . . that the defendant acted with knowledge that his conduct was unlawful.” id. at 192 technology primarily designed to circumvent technological measures for interoperability and unrestricted access to various technologies. id. at 392 (“tpms the law in its jury instruction, but concludes that the error was harmless. misstated the dmca’s willfulness requirement and thus precluded the jury from emphasizing that he is a truck driver with only a high school diploma, reichert points regulatory exemption, which covered a particular use for mod chips that had previously not involve or facilitate copyright infringement.1 his console modification business openly; he advertised his services and even opened a program to a particular use, to implement security measures, to strengthen privacy argued: october 4, 2013 no. 13-3479 usa v. reichert page 22 federal law . . . the jury charge may be viewed in isolation; rather, the charge must be considered as a v. metro goldwyn mayer studios, inc., 307 f. supp. 2d 1085, 1097 (n.d.cal. 2004) (finding that copyright statutory construction and scope of the dmca’s anti-circumvention provision among programs.”), aff'd on other grounds, 572 u.s. ___ (2014). him in 2007, requesting a modified nintendo wii. reichert responded to the agent’s theconsumer electronicsenvironment.”). becausevideogamesareessentiallycomputer meanwhile, at the time of this writing, there are two bills currently pending before congress that statement. while it is certainly possible that the jury relied on the correct portion of the specific argument raised by reichert’s appeal. reichert argues that the jury instruction informed the jury that, for a defendant’s conduct to be willful, he “need not be aware of considering his defense. because i find that the jury instruction fundamentally undercut however, the opposite is true—the jury instructions convoluted the scienter element of § 2.09. the pattern instruction explicitly incorporates the requirement that a defendant in 2003, however, the librarian of congress reversed course and carved out united states of america, opinion. while i agree with the majority as to the other issues presented by this appeal, ignoring the obvious. if you are convinced that the defendant individuals and entities who facilitate the widespread unauthorized reproduction of indicate a culpable state of mind. id. at 191. illegal. the federal public defender, cleveland, ohio, for appellant. robert w. otherwise exist.” blackwell, 459 f.3d at 753 (quotation marks and internal alteration bad purpose,” or “careless disregard [for] whether a person has the right so to act.” video games and pirated ones. agents subsequently obtained a search warrant and against circumvention technologies with only an incidental relation to copyrighted designed to circumvent technological protection measures that prevent copyright [d]eliberately ignored a high probability that he was trafficking in control, but did not infringe [the copyright].” chamberlain group, inc. v. skylink and play “homebrew” video games developed by independent amateur game creators and hobbyists. see after the conclusion of the prosecution’s case, reichert’s friend belcik testified modification that required soldering twenty-nine individual wires to the circuit board. requisite mens rea finding on reichert’s knowledge that the technology in which he keepingwith our longstanding recognition of the principle that ambiguity concerningthe “special.” accordingly, the district court did not err in applying § 3b1.3’s special skills _________________ 98 f.3d 502, 504–07 (9th cir. 1996), where the defendant’s self-taught computer skills marine co., 377 f.3d 645, 650 (6th cir.2004)). when reviewing jury instructions, we requests, purchased a wii, installed a modification chip, and sold the modified wii to the x l. 209, 229 (2004). subsequent rulemakings renewed this exemption and introduced defendant “must have acted with the intent to do something the law forbids,” and that no. 13-3479 usa v. reichert page 17 cleveland, ohio, for appellant. robert w. kern, united states attorney’s no. 13-3479 usa v. reichert page 15 income it generated. moreover, at trial, an agent who had engaged in online i. § 1201(a)(3)(a). had the effect of negating the requirement that reichert’s conduct be a “willful” 501 f.3d 469, 475–76 (6th cir. 2007), the arbitrary or disproportionate exclusion of violated the dmca, because he was unaware that installing mod chips into video game testified that the “primary purpose” of modification chips is to enable a user to play of commerce, with the task of creating additional regulatory exemptions in the future, deactivate[s], or impair[s]” a technological protection measure. 17 u.s.c. treaties and to update domestic copyright law for the online world.” ellison v. studios, inc. v. corley, 273 f.3d 429, 435 (2d cir. 2001)) (internal quotation marks 1 reflect the dmca’s mandate that, in order for criminal liability to attach, the purpose of “achiev[ing] interoperability of an independently created computer program court’s incorrect misstatement of law or its accompanying, yet contradictory, correct which to attach the wires and because holding a soldering iron on the circuit board for berry, 717 f.3d 823, 835 (10th cir. 2013) (ability to drive an eighteen-wheeler truck was no. 13-3479 usa v. reichert page 12 of circumvention technologies, congress built several exceptions into the anti- designed to circumvent technological measures designed to effectively control access reichert’s constitutional right to present a defense; and (3) that he was improperly circumvention provision. see 17 u.s.c. § 1201(d)-(j). congress also charged the decided and filed: march 28, 2014 for example, a common complaint about the nintendo wii is that, unlike other popular video demolition experts.” id. claiming that he “learned how to modify game consoles skills were not similar to those listed in application note 4 and were thus not special for look to the instruction as a whole to determine whether “they adequately informed the directly in the due process clause of the fourteenth amendment or in the compulsory instruction, the likelihood that it relied on the incorrect portion seems equally probable. u.s.s.g. § 3b1.3, concluding that reichert’s crime was facilitated by his possession of hosted online forums dedicated to the discussion of modifying video game consoles by violated a known legal duty.1 constitute a violation of a defendant’s right to present a defense.” hardy, 586 f.3d at the government must prove “that the law imposed a duty on the defendant, that the locations on a console’s circuit board. according to the witness, it is a “pretty modifications, and his expert assistance was actively sought out and paid for by gamers no indication that the court was correcting its earlier statement or that the jury should district court’s refusal to give a jury instruction is reviewed for abuse of discretion, this instead,reichertclaimsthatthejurywas given a deliberate ignorance instruction ct. 2060, 2070 (2011). but reichert is incorrect. the deliberate ignorance instruction reproduce copyrighted works and disseminate them around the world with ever greater salvaged the jury instruction such that reichert was not deprived of a fair trial. in my no. 13-3479 usa v. reichert page 5 becausethepertinentwillfulnessanddeliberateignoranceprincipleswere“substantiallycovered on appeal, reichert argues, inter alia, that the jury instruction provided at trial requirement, and on this appeal we do not decide its scope. for this appeal, the parties could know that his conduct was actually illegal. nor does reichert challenge any of the manner that significantly facilitated the commission or concealment of the offense.” id. i would be more inclined to agree with the majority if the dmca’s anti- i would reverse on the basis of the erroneous jury instruction. agree that it requires the government to prove that reichert voluntarily and intentionally beliefs into evidence: by taking the stand himself. as a result, reichert’s constitutional circumvention has occurred.” corley, 273 f.3d at 443; see also mge ups sys., inc. v. without authorization. the dmca was designed in part to remedy this problem. the only remaining question is whether other portions of the instruction, when §§ 1201(a)(2)(a). assessed a “special skills” sentencing enhancement under u.s.s.g. § 3b1.3. we hold telecommunications and information administration (“ntia”) of the u.s. department no. 13-3479 usa v. reichert page 26 2009). by contrast, where the instructions, “taken as a whole, fairly and adequately in context, therefore, the language relied upon by reichert did not detract from c. legal status of “mod chips” and video game console modifications reichert’s services from reichert’s residence, as well as from the garage of one of his mod chips without licenses are illegal.” millennium copyright act on the circumvention of game console security measures, 28 nova l. rev. technology manufacturers use tpms to limit the functionality of a device or 681 f.3d at 876–77. circumvention technologies under the dmca. 71 fed. reg. 68472, 68476 (nov. 27, government’s contention that reichert knew he was breaking the law, then i might be n action” to avoid actual knowledge. see global-tech appliances, inc. v. seb s.a., 131 s. appeal from the united states district court submit[ ] the issues and applicable law to the jury,” our inquiry ends, as a defendant the government must prove that the defendant acted with knowledge that his conduct walls such as encryption codes or password protections” by banning the use, duty, and that he voluntarily and intentionally violated that duty. ambit of criminal statutes should be resolved in favor of lenity.” liparota v. united declined to give the alternative deliberate ignorance instruction proposed by reichert. provision, which permits circumvention of tpms through reverse engineering for the see vijay g. brijbasi, game console modification chips: the effect of fair use and the digital the adequacy of notice to the complainant that his conduct is proscribed”). therefore, infringing “homebrew” video games would appear to be lawful under the dmca. see stevenson, supra pirated video games. although each particular hardware version of a console requires run back-up copies of legally purchased video games to replace damaged or lost originals. see 321 studios opinion in response to this problem, the dmca gave copyright owners a remedy against designed to effectively control access to a work copyrighted under reichert knew that it was unlawful for him to sell modified video game consoles. (quoting ratzlaf v. united states, 510 u.s. 135, 137 (1994)); accord dixon v. united the defendant was aware of a high probability that he was violating the and that accurately states the law. united states v. zidell, 323 f.3d 412, 427 (6th cir. between deliberate criminal conduct and unwitting or oblivious conduct which does not was unlawful.” roth, 628 f.3d at 834 (internal quotation marks omitted). it is also in addition, mod chips enable video game enthusiasts and more sophisticated gamers to create and refused to allow belcik to testify about whether reichert had ever stated whether he violating the digital millennium copyright act.” given that this language hinges the review of the legal aspects of the constitutional violation is de novo. united states v. b. the dmca’s “anti-circumvention” provision, 17 u.s.c. § 1201(a)(2) install a “mod chip” into a video game console that could enhance its functionality in a or bypasses a tpm and can be accessed by downloading a program, running an before and after the digital millennium copyright act, 3 j. on telecomm. & high tech. ii. seized modification chips, a soldering iron, computers, and business cards advertising technology. federal agents had begun investigating xbox-scene.com, a website that modified. at one point, reichert even cautioned that certain types of modifications were interpretations of the dmca, i dissent from the majority’s opinion. bass, 404 u.s. 336, 347–34, (1971); bell v. united states, 349 u.s. 81, 83 (1955); violation of the dmca; (2) that the exclusion of a defense witness’ testimony violated as the lone witness on reichert’s behalf. belcik testified that he and reichert learned no. 13-3479 usa v. reichert page 24 digital millennium copyright act on the circumvention of game console security united states v. tatum, 518 f.3d 369, 372 (6th cir. 2008). agent for a $50 profit. when the wii was tested, it was able to play both legitimate to fall within the statutory exception for reverse engineering at § 1201(f). see generally, testified that “it is pretty well known among the community that in the united states reichert’s sale of the modified console and the search of his residence. belcik never a concern in this case if the jury instruction had properly ensured that the government copies of video games. in 2007, reichert sold one of these modified consoles—a the government must prove that the defendant acted with knowledge that his conduct no. 13-3479 usa v. reichert page 23 purpose in a rapidly evolving technology industry. as directed in § 1201(a)(1)(c), the “evaluated in the context of the entire record[,] creates a reasonable doubt that did not - legal provisions prohibiting the defendant’s conduct); see also united states v. cross, jury’s findings—including its willfulness finding—as supported by insufficient more inclined to agree with the majority. here, however, reichert put forth reichert’s skills, by contrast, are much more sophisticated than those at issue in 17 u.s.c. § 1201(a)(2)(a), which prohibits, in relevant part, the trafficking of any to install the modification chip without damaging the delicate circuit board. over time, united states v. universal c.i.t. credit corp., 344 u.s. 218, 221-222 (1952)). the rule modifying the hardware was legal but selling the copyrighted games was illegal.” given in this case tracks the language of sixth circuit pattern criminal jury instruction that his conduct violates, as long as he is aware that his act is illegal. id.; see bryan v. in order to establish a willful violation of a statute, “the government must prove at326–27(internalalterationsandquotationmarksomitted);united states v. humphrey, manufacture, or sale of technologies that circumvent digital copyright controls. id. 2 _________________ defendant-appellant. the ninth circuit, however, disagrees and construes the dmca’s anti- rulings—including constitutional challenges to evidentiary rulings—under the digital millennium copyright act, and that the defendant deliberately closed his eyes 1044. in fact, the exclusion of defense evidence violates a defendant’s constitutional this respect. deliberately ignored a high probability that he was trafficking in no. 13-3479 usa v. reichert page 21 federal law, then you may find that he knew he was violating the digital burchard, 580 f.3d at 345 (citing united states v. robinson, 547 f.3d 632, 637 (6th cir. is necessary when “[a]n appellate court can do no more than guess at what a jury might sophisticated.” id. in this respect, emphasis is best placed “on the difficulty with which where “important defense evidence” is excluded without serving “any legitimate defendant’s familiarity with a computer scanner and experience in desktop if a mod chip is installed in a playstation console, the counterfeit, unlicensed ‘burnt’ providing modification services for video game consoles. he did so openly and states v. salisbury, 983 f.2d 1369, 1377 (6th cir. 1993). several online postings were also admitted against reichert at trial. in one, publishing—which the defendant used to manufacture “fairly good quality” counterfeit abuse-of-discretion standard.”). but, of course, a defendant “does not have an unfettered downward “two levels” from the guidelines, ultimately sentencing reichert to twelve a time-honored interpretive guideline” that criminal culpability does not attach unless no. 13-3479 usa v. reichert page 11 dissent for which the consoles were not originally designed. reichert was one of the moderators willfulness requirement by allowing the jury to convict him upon finding only that he separate bank account for the business because he planned to file tax returns on the defendant knew of this duty, and that he voluntarily and intentionally violated that unlocking consumer choice and wireless competition act, h.r. 1123, 113th cong. (2014). see kernochan study, at 411-15 (compiling sources). requirement may be satisfied by a showing of willful blindness; that is, a defendant’s apply the correct statement of the law instead of relying on the district court’s incorrect right to offer evidence that is incompetent, privileged, or otherwise inadmissible under games. see 17 u.s.c. §§ 1201(a)(2)(a), 1201(f). accessing “video games distributed in formats that have become obsolete and which statute, the government must prove that the defendant acted with knowledge that his right to present a defense was not violated by the district court’s evidentiary ruling in to give copyright owners additional means to protect copyrighted materials in the digital careful.” even though it “does not concern itself with the use of those materials after voluntarily and intentionally with the intent to do something unlawful, reichert became exceptionally skilled at makingthesemodifications, eventually serving , does not establish a violation of the dmca unless it can also be demonstrated that there therefore, i respectfully dissent from part ii of the majority opinion. installed into a video game system’s motherboard—can enhance its capabilities or add reichert’s argument rests primarily on the first portion of the deliberate chamberlain group, 381 f.3d at 1196. thus, the dmca “targets the circumvention of 121, 128 (2006) (providing a comprehensive overview of the rulemaking process). portions of the dmca are so vague or of such uncertain application that no defendant argues that his ability to modify game consoles is not reasonably comparable to the skills operation tangled web. as a result, reichert was charged under the dmca’s criminal proposition that video game modifications are not per se unlawful under the anti- carelessness or negligence or foolishness on his part is not the same as tool for copyright infringement and to provide remedies for copyright holders against eviscerated the dmca’s willfulness requirement is tenuous. see roth, 628 f.3d at or bypass a game console’s security measures and enable users to run software for which infringing purposes as well as to facilitate copyright infringement makes it all the more 31, 2003). although the intent of the 2003 rulemaking was to clarify the dmca’s district court’s findings with respect to reichert’s self-training, ability, and circuit’s recent opinion demonstrates, competing interpretations of the anti- the dmca’s anti-circumvention provision prohibits the act of circumvention n. 1; phillip a. harris jr., mod chips and homebrew: a recipe for their continued use in the wake of are not within the ambit of the dmca’s anti-circumvention provision. see lexmark, to what was obvious.” several exemptions for circumvention technologies which had previously been thought then, the jury was not required to find that reichert knew that his conduct violated any we cannot agree. in godman, we observed that requisitely “special” skills may testified at trial, modification of a game system can be a “pretty complicated process,” of a very few individuals who knew a work-around for one of the most complicated controls, and of course, to protect intellectual property by preventing unauthorized is willful if done “with the intent either to disobey or disregard the law,” that the digital walls guarding copyrighted material (and trafficking in circumvention tools),” their legal status under the dmca. his defense, which in turn, was particularly susceptible to confusion due to conflicting knew that his conduct was against the law, given his admissions that he was operating bills, id.—could be replicated in fairly short order by “[m]ost persons of average ability” those who “picked the lock” and enabled the infringement to occur in the first place, was if the jury had received a proper instruction on the law, which imposed the conduct was unlawful.”). therefore, at trial, the government was required to prove that highest possible burden upon the government to demonstrate that reichert “willfully” who had attempted to modify consoles on their own but were unable to do so or who omitted). specifically, the dmca’s anti-circumvention provision was designed to purchased video games across multiple platforms, or to enable the playing of independently designed non- within the meaning of the guideline . . . is a mixed finding of law and fact that this court support “the efforts of copyright owners to protect their works frompiracy behind digital experience in addition to the basic “small potatoes” training initially required). the ignorance instruction did not fatally undermine it. > although circumvention technologies can serve a number of legitimate, non- pursuant to u.s.s.g. § 3b1.3. section 3b1.3 provides for a two-point enhancement if purchased dvds, would also seem to fall under the reverse engineering exception at § 1201(f), so long unforeseen ways. see id. at 393-394; see also universal city studios, inc. v. reimerdes, kernochan study] (internal quotation marks omitted). on any forum that knew there was another way beside the 29 wire mod” to modify a a modification chip, or “mod chip,” is a computer chip with software that—once this court reviews de novo a claim that the jury instruction inaccurately stated permits judges to exclude evidence that is repetitive, only marginally relevant or poses cartridges compatible with lexmark printers was not primarily designed to circumvent combined with the district court’s misstatement of law and viewed in its entirety, for appellee. and, of course, reichert had at least one other avenue of putting his own statements and “circumvention liability for digital trespass under [17 u.s.c.] § 1201(a)(1),” and element of the dmca’s criminal provision that the jury was precluded from properly reichert contends that his skills are not “special” within the meaning of § 3b1.3. conduct is violating. willfulness requires the government to prove that to sites and chat rooms where they could obtain pirated games and thwart console under federal rule of evidence 803(3) as a statement of reichert’s then-existing state statement of law did nothing to restore the incorrectly stated part of the instruction. if to be an accurate statement of the law. united states v. mitchell, 681 f.3d 867, 876 n.51 how to build his own computer systems from components, reichert continued to modify [d]eliberately ignored a high probability that he was breaking the law of lenity, in turn, “ensures that criminal statutes will provide fair warning concerning complicated process,” given that the modifier needs to identify the proper locations to ignorance instruction. it advised the jury, “if you are convinced that the defendant no. 13-3479 usa v. reichert page 4 that “a scienter requirement may mitigate a law's vagueness, especially with respect to because it was accompanied by and “sandwiched between” two proper statements of programs, the reverse engineering exception has often been relied upon for the purchase a mod chip or seek to have one installed into a video game console. by the actual jury charge,” the district court did not abuse its discretion in declining to give reichert’s the majority concludes that the misstated part of the instruction was harmless evidence, i mention it here because it leads to the conclusion that an error must have is a nexus between the use of a particular circumvention technology and actual copyright technology primarily designed to circumvent technological measures study, 404-406 (providing a detailed legislative history of the dmca’s anti- acted “with knowledge that his conduct was unlawful.” united states v. roth, 628 f.3d the government does not argue in this case that the willfulness requirement is met by a jury of the relevant considerations and provided a basis in law for aiding the jury in measures, 28 nova l. rev. 411, 426 (2004); phillip a. harris jr., mod chips and millennium copyright act. 834 (6th cir. 2011) (“[i]n criminal cases, in order to establish a willful violation of a - can be broken quickly by the technologically able; these individuals can then create and consoles was against the law. provision of the jury charge may be viewed in isolation; rather, the charge must be and clarified the challenged language. immediately before giving the challenged “not for . . . normal people” because a modifier could “[s]crew stuff up” if he was “not law review articles published around the time of reichert’s arrest suggest that his speed and efficiency.” id. at 391. circumvention provision were itself less ambiguous. in this case, however, the charging than the statute’s willfulness requirement. see 17 u.s.c. § 1204. criminal liability to attach under § 1204(a), the government had to prove that reichert as used in these instructions, an act is done willfully if it is done conduct rendered illegal and strikes the appropriate balance between the legislature, the indeed, in the very first rulemaking proceeding to consider government had to prove that reichert knew his conduct to be unlawful. 17 u.s.c. counsel pursuant to sixth circuit i.o.p. 32.1(b) misleading and prejudicial.” united states v. burchard, 580 f.3d 341, 345 (6th cir. of hoffman estates v. flipside, hoffman estates, inc., 455 u.s. 489, 499 (1982) (finding the playstation 3 as a case study, 21 s. cal. interdisc. l.j. 681, 682 n.7 (2012) (“homebrew is a term for exemptions to the dmca’s anti-circumvention provision, the librarian of congress of the law of computer game modifications, 4 chi.-kent j. intell. prop. 196 (2005); met its obligation to prove the willfulness element of reichert’s alleged crime. here, his conduct was illegal. roth, 628 f.3d at 834–35. this is exactly what the district circumvention provision.2 committed “willfully” and for commercial or private financial gain. the term librarian of congress carves out exceptions to § 1201 in rulemaking proceedings every on the other hand, overly restrictive or impractical tpms can also interfere with status of the defendant’s conduct. under these circumstances, i cannot agree with the the jury instructions’ overall import: when viewed “as a whole,” the jury instructions through trial and error, using how-to books and information from the internet,” reichert designed to effectively control access to a work copyrighted under be acquired “through months (or years) of training, or the equivalent in self-tutelage.” not so vital to reichert’s defense that its exclusion caused him constitutional injury, and __________________ technology that “is primarily designed or produced for the purpose of circumventing a interests” or in a manner that is “disproportionate to the ends that [the rationale for “willfully” and for “commercial advantage or private financial gain.” 17 u.s.c. for the foregoing reasons, i respectfully dissent from part ii of the majority nevertheless, the court observed that reichert was “getting a tough deal” and varied at 527. reichert has never objected to the district court’s willfulness instruction, and it no. 13-3479 usa v. reichert page 8 this evidence suggests what we did not find in godman: that reichert’s distribute tools to those with less technological sophistication, allowing them to record here demonstrates that reichert’s skill with computer hardware and specialized in cases such as this one, where the charging statute is subject to various omitted). routine upgrades are the bane of ‘homebrew’ enthusiasts, wash. post, july 6, 2006, at d04). terms how a modification chip would typically be installed: the console would be following instruction on “willfulness”: hardy, 586 f.3d 1040, 1043 (6th cir. 2009). but see united states v. schreane, 331 management systems incorporating one or more of the foregoing.” june m. besek, anti- prove deliberate ignorance. the district court overruled reichert’s objection and but reichert’s focus is too myopic. even to the extent that the challenged this is consistent with our typical approach, as reichert objected to the special skills enhancement, but the district court and content analysis of the dmca exemption proceedings,24 cardozo arts & ent. l.j. overruled his objection, expressing its opinion that the enhancement was proper. statements of the law. although other parts of the instruction may have provided the those who did not themselves infringe a copyright but instead circumvented a. technological protection measures and technological circumvention indicated that reichert’s statements about the legality of his conduct were made at any language—‘for the purpose of’—as well as the main point of the dmca—to prohibit instructions accurately stated the law, however, reichert’s position is without merit.2 violated the dmca, it seems highly improbable that it would have convicted reichert office, cleveland, ohio, for appellee. on brief: darin thompson, office of a. the jury instruction no. 13-3479 usa v. reichert page 25 require original media or hardware as a condition of access.” 68 fed. reg. 62011 (oct. reichert’s first line of argument, which implicates the jury’s finding that his the criminal enforcement of the digital millennium copyright act (“dmca”). a recommended for full-text publication in a “gray” area of the law and was “technically” not supposed to be engaging in his on the evidence presented at trial. lexmark, 387 f.3d at 549 (“[t]he interoperability provision [was designed to] ensure it has been clearly established. see liparota, at 418. donald, j. (pp. 15–27), delivered a separate dissenting opinion. (6th cir. 2012). duplication and/or access. id. at 446-466. today, the vast majority of commercially previously expressed a belief that modifying consoles was not illegal. “whether rooted intellectual property, where tpms can provide varying degrees of protection against the “congress enacted the dmca in 1998 to comply with international copyright of copyright protection systems for access control technologies, 65 fed. reg. 64556, the pirating of copyright-protected works such as movies, music, and computer ordinarily the case that a defendant need not be aware of the specific provision of law 411, 436 (2004). under the reverse engineering exception at § 1201(f), a console modification designed properly considering his defense. the majority concedes that the district court misstated 1204; lexmark, 387 f.3d at 547-48; cf. mdy indus., 629 f.3d at 948. in fact, several the fact that modified video game consoles can be used for both legitimate, non- be considered unlawful. see 17 u.s.c. § 1201(a)(2)(a). when read in conjunction with that “descramble[s]” or “decrypt[s]” or otherwise “avoid[s], bypass[es], remove[s], - 64570 (oct. 27, 2000) (codified at 37 c.f.r. 201). manufacturers’ ability to detect that their consoles were modified. 1 were trying to prevent console manufacturers fromdetecting that their consoles had been while a district court’s factual findings underlying its application of the enhancement the district court had acknowledged its mistake and explicitly corrected itself, then but to find this, you must be convinced beyond a reasonable doubt that that the dmca would not diminish the benefit to consumers of interoperable devices in defense evidence has constitutional significance only if the excluded evidence, as such a modification was not designed “primarily . . . for the purpose of” playing illegal, pirated video digital passwords or encryption codes, “[p]rior to the dmca, a copyright owner would v. south carolina, 547 u.s. 319, 324 (2006) (quotation marks and citations omitted). v. would override much of the framework established through the dmca’s regulatory rulemaking process language of § 1201(a), certainly lends itself to a reading under which mod chips would scholars and other commentators who question whether certain applications of § 1201 reversal is warranted only “if the instructions, viewed as a whole, were confusing, understanding of mod chips’ legal status was no different from the views expressed by we readily conclude that the exclusion of belcik’s testimony did not cause grounds: (1) that the jury received an inaccurate “deliberate ignorance” instruction that overwhelming evidence to establish his defense. it is undisputed that reichert operated game disc will play.”); many legitimate, non-infringing, uses exist for mod chips that do statute was arguably open to various interpretations. under these circumstances, i court’s “willfulness” instruction told the jury, and the mildly imprecise deliberate whole.”). a judgment stemming from a jury verdict should be reversed if the homebrew: a recipe for their continued use in the wake of sony v. divineo, 9 n.c. reichert’s self-taught technical expertise merited a § 3b1.3 enhancement. we therefore interpretations, the relationship between adequacy of notice and a statute’s scienter 928, 948 (9th cir. 2010) (rejecting the “infringement nexus” requirement). as the ninth trafficked was primarily purposed to facilitate illegal conduct, reichert’s claim that it united states, 524 u.s. 184, 196 (1998) (willful violation of 18 u.s.c. § 924(a)(1)(d) like the wii for the purpose of enhancing its functionality, so that it can play ordinary and lawfully 2003). are reviewed for clear error, see united states v. wilson, 345 f.3d 447, 449 (6th cir. technologies designed to bypass tpms have proliferated to meet the consumer demand to a work copyrighted under federal law, then you may find that he knew he was the jury about the correct application of the law. roth, 628 f.3d at 833; see also requirement. no court has yet discussed the reach of 17 u.s.c. § 1204(a)’s willfulness believe that video game modifications and mod chips occupied a legal “gray area.” argued: darin thompson, office of the federal public defender, __________________ reviews de novo.” united states v. godman, 223 f.3d 320, 322 (6th cir. 2000); see finally, reichert challenges the district court’s decision to enhance his sentence 387 f.3d 522 (holding that a modification chip designed to make third party ink designed to effectively control access to a work copyrighted under copyright act using the playstation 3 as a case study, 21 s. cal. interdisc. l.j. 681 where a defendant attacks an evidentiary ruling as violating the sixth amendment, months and one day of imprisonment. reichert now appeals his conviction and however, there is simply no way of knowing whether the jurors relied on the district given the ongoing debate over the scope of the dmca’s anti-circumvention provision, given in this case properly instructed the jury on the issue of willfulness. ross, 502 f.3d devices. tpms “range from the basic to the sophisticated” and include “password that was erroneous in at least two respects. first, reichert argues that the instruction necessary clarity for some jurors to understand what the district court meant, there was provision is not intended to function as a comprehensive ban on all circumvention godman. building on skills learned in a high school vocational program that taught him defendant’s conduct may suffice for willfulness). still, devoid of context, this part of the copyright and thus did not violate the dmca); chamberlain group, inc. v. skylink no. 13-3479 usa v. reichert page 3 circumvent protection measures.”). griffin, j., delivered the opinion of the court, in which rogers, j., joined. a particular skill is acquired.” id. at 322. in godman, for instance, we observed that the circumvention provision give § 1201 the potential to function as a broader prohibition circumvention laws and copyright: a report from the kernochan center for law, qualify for the enhancement, a defendant’s self-taught skills must be “particularly before: rogers, griffin, and donald, circuit judges. no. 13-3479 usa v. reichert page 7 the manufacturer’s interests in maintaining control of the technology after it has been claiming that he is due a reversal based purely on instructional error. because the jury failed to properly reflect that a defendant is willfully blind only if he took “deliberate with other programs,” that are not otherwise readily available. 17 u.s.c. § 1201(f); see reichert’s point of view was not unsupported. see e.g., chamberlain, 381 f.3d at 1203- as the majority explains, jeffrey reichert operated a small business of sorts, listed in application note 4. technologies; rather, its purpose is to prevent those technologies from being used as a to which reichert objects, the district court cautioned the jury that, to find that reichert librarian of congress, in conjunction with the u.s. copyright office and the national with “a minimum of difficulty.” id. at 323. we therefore concluded that the defendant’s iii. modified consoles fromadverse action. see exemption to prohibition on circumvention instruction lends some support to reichert’s position, as it seems to inform the jury that careful.” in another, an xbox-scene.com user lauded reichert as “the only person . . . “[g]enerally . . . , in criminal cases, in order to establish a ‘willful’ violation of a statute, states, 471 u.s. 419, 427-28 (1985) (citing rewis v. united states, 401 u.s. 808, 812 advertised his services on the internet. for a fee of approximately $50, reichert would 111 f. supp. 2d 294, 322 n.159 (s.d.n.y. 2000), aff'd sub nom. universal city studios, because a defendant suffers a constitutional violation only if evidence in which doubt that the defendant was aware of a high probability that he was violating the at issue, then the jury could find that reichert knew that his conduct violated the dmca. court reviews de novo a claim that a jury instruction inaccurately stated the law. united strengthening copyright law and preserving consumer rights, promoting technological technological controls and thereby enabled others to infringe. it did so by creating both united states court of appeals griffin, circuit judge. jeffrey j. reichert appeals his criminal conviction and proposed instruction instead of the one actually used. united states v. blanchard, 618 f.3d 562, 573 (6th instead, the district court instructed the jury to deliver a guilty verdict if reichert: latent ambiguities in the dmca’s anti-circumvention provision could have been less of users to play unauthorized and illegal copies” of video games, sony computer entm’t the defense has a “weighty interest” is impermissibly excluded, see ferensic v. birkett, a. jury instructions. having been properly instructed, the jury found that reichert constructively jan.18, 2000)). the demand for a solution to this perceived deficiency is one of several reasons why a consumer might no. 13-3479 usa v. reichert page 6 1 deliberate ignorance, contending that “deliberate actions” must be proven in order to the district court should have instructed the jury to deliver a guilty verdict if it mod chips were in a gray area.” finally, although one agent testified that reichert did in a “vocational program in high school” how to build computers, and that reichert an undue risk of harassment, prejudice, or confusion of the issues.” holmes, 547 u.s. to ensure that the anti-circumvention provision would continue serving its intended general ease with which the internet and digital technology “have made it possible to copyright act.”) (citing universal city studios v. corley, 273 f.3d 429, 435 (2d the specific law or the rule his conduct is violating.” even in reichert’s formulation, accordingly, several courts, including ours, have held that circumvention digital millennium copyright act, and that the defendant deliberately conscious decision to remain ignorant of the illegality of his conduct even when the circumvention of tpms on video games and video game consoles for the purpose of members of the general public and usually requiring substantial education, training or act “deliberately” to avoid full knowledge, and we have “repeatedly” held the instruction cannot be improperly prejudiced by a jury instruction that is warranted by the evidence infringement, in violation of the dmca’s anti-circumvention provision. 17 u.s.c. exclusion is] asserted to promote.” holmes, 547 u.s. at 324, 325, 326 (internal certain type of console. some of reichert’s other online postings directed forum users time contemporaneous to 2007. belcik’s proffered testimony, therefore, had only criminal defendants a meaningful opportunity to present a complete defense.” holmes regulatory rulemaking, however, the actual legal status of mod chips and video game inadequate to protect their copyrighted material. see universal city studios, inc. v. was unlawful.”). moreover, the district court’s error was not a minor misstatement of _________________ piracy, copyright owners feared that the ability to pursue only infringers, rather than am., inc. v. filipiak, 406 f. supp. 2d 1068, 1070 (n. d. cal. 2005) (“a counterfeit, the emphasis upon mens rea in the vast majority of criminal statutes is “in infringement); see also storage tech. corp. v. custom hardware eng'g & consulting, reichert a constitutional injury. to be sure, the statements may have been admissible a consumer’s ability to use technology in legitimate, but perhaps unintended or - trafficking in circumvention tools in violation of § 1201 is a criminal offense if it is perhaps it could be said that the jury instruction, viewed as a whole, was proper. here, knew that he was trafficking in circumvention technology, rather than after finding that innovation,andprotectingfirstamendmentspeechin our increasingly digitized culture. if reichert deliberately ignored a high probability that he merely engaged in the conduct itself, 17 u.s.c. § 1201(a)(1), and also targets the availability of circumvention affirm. provided at trial misstated applicable law and so confused the jury on the willfulness instruction that muddled the mens rea element of the charge was harmless. see united no. 13-3479 usa v. reichert page 13 j. l. & tech. 113, 115-118 (2007); zvi rosen, mod, man, and law: a reexamination inc. v. corley, 273 f.3d 429 (2d cir. 2001). as a result, various circumvention web-based services to] copy and distribute . . . copyrightable work[s] in digital form.” in the jury instruction compounded the already heightened risk for error in a case where opened, and wires from the modification chip would be soldered to the appropriate its own specialized modification chip, the government’s witness detailed in general no. 1:12-cr-00177-1—donald c. nugent, district judge. - cir. 2010) (internal quotation marks omitted). that the jury instructions as a whole properly stated the law, the excluded testimony was the console was not originally intended. one of the government’s expert witnesses file name: 14a0060p.06 modified his first xbox in about 2003, while in eleventh or twelfth grade. belcik 2 installing “modification chips” (or “mod chips”) in them so that they could run software consoles for almost half of a decade. as one of the prosecution’s expert witnesses enabled him to hack into the secure computer systems of major financial institutions, the game consoles, such as the sony playstation and microsoft xbox, the wii cannot play ordinary dvds. knew that he was violating the dmca, “you must be convinced beyond a reasonable c. special skills enhancement. specialized abilities could not be duplicated by “[m]ost persons of average ability” with § 1204(a); roth, 628 f.3d at 834 (“[i]n order to establish a ‘willful’ violation of a statute, application, or, as in this case, inserting a computer chip embedded with such a code into reasoning that § 1201(f) was sufficient to safeguard legitimate users of mod chips and 2006).3 defendant’s knowledge that the technology trafficked in was primarily designed for purposes known to be (2012). nevertheless, the jury delivered a guilty verdict. duty.” and immediately after giving the portion of the deliberate ignorance instruction “primarily” for the purpose of enhancing a console’s “interoperability,” such as accessing legitimately no. 13-3479 usa v. reichert page 20 a violation of § 1201 is only a criminal offense under § 1204(a) if it is application to mod chips and other circumvention technologies, the addition of this new “a minimum of difficulty.” godman, 233 f.3d at 323. although we agree with reichert ii. if the statute of conviction in this case were itself less ambiguous, i might be friends, kevin belcik. reichert ultimately was charged in a one-count indictment under 3 lawful and unlawful purposes. although some modifications are designed to “allow no. 13-3479 usa v. reichert page 19 process or confrontation clauses of the sixth amendment, the constitution guarantees speculation. see davis v. georgia, 451 u.s. 921, 922 (1981) (explaining that reversal § 1204(a). circumvention provision); lexmark int’l, inc. v. static control components, inc., to § 3b1.3, cmt. n.4, which explains, “‘special skill’ refers to a skill not possessed by congress enacted the dmca to address “the ease with which pirates could [use with knowledge that his conduct was unlawful.”); united states v. roth, 628 f.3d 827, one government agent noted that in march 2007, reichert posted on an online since its passage. see the unlocking technology act of 2013, h.r. 1892, 113th cong. (2013); the to an advisory guidelines range of fifteen to twenty-one months. 2006) (internal alterations and quotation marks omitted). instead, “the constitution for businesses that operate in the digital realm. this is particularly true in the context of it was illegal to [sell and install modification chips], . . . he did state that he knew the technologies designed primarily for purposes other than to bypass copyright restrictions specific statute; all that was required to convict reichert was a finding that he knew that states v. roth, 628 f.3d 827, 833 (6th cir. 2011). as we have made plain, “no single enhancement to reichert. defendant is aware of a high probability that his conduct is in fact illegal. see mitchell, illegal software. belcik began to state that reichert “indicated that what he was doing bernice bouie donald, circuit judge, dissenting. this appeal concerns (internal quotation marks omitted). reichert claims that he could not have “willfully” no. 13-3479 usa v. reichert page 27 age. although copyright owners often attempted to protect digitized materials behind licensing. examples would include pilots, lawyers, doctors, accountants, chemists, and right to present a defense only where it is “arbitrary” or “disproportionate”; that is, for the sixth circuit no. 13-3479 usa v. reichert page 18 conduct was “willful,” is notably narrow. reichert does not argue that the pertinent not knowingly order his modified chips from an international source, another witness have had no cause of action against anyone who circumvented any sort of technological reichert informed an inquirer that a specific type of modification chip “is the best chip no. 13-3479 usa v. reichert page 14 sentence. law does not prohibit consumers from creating duplicate “back-up” copies of legally purchased video law—it directly undermined reichert’s only defense at trial. 834–35 (indicating that awareness of broad criminal regulations obviously applicable to media and the arts, 27 columb. j.l. & arts 385, 391-392 (2004) [hereinafter difficult to determine the precise legal status of mod chips. in a vacuum, the plain the charging statute was arguably subject to various interpretations as to the exact legal despite reichert’s assertions, we cannot agree with reichert that the jury the law. united states v. roth, 628 f.3d 827, 833 (6th cir. 2011) (citing united states violation of the dmca may rise to the level of a criminal offense if it is committed the charge and aggravated the already heightened risk of error stemming from a statute games). vijay g. brijbasi, game console modification chips: the effect of fair use and the (1971); united states v. u.s. gypsum co., 438 u.s. 422, 437 (1978); united states v. committed “willfully” and for commercial or private financial gain. 17 u.s.c. having established a basic understanding of the dmca’s anti-circumvention i. considered, but ultimately declined to create an exemption for mod chips designed purposes of the enhancement. id. of the discussion forums hosted on xbox-scene.com, and an undercover agent contacted technologies by making it unlawful to traffic in technologies designed to circumvent robertson, 357 f.3d 1072, 1076 (9th cir. 2004). in large part, the dmca was intended the legislative history of the dmca makes clear that the anti-circumvention before the jury was instructed, reichert objected to the proposed instruction on techs., inc., 381 f.3d 1178, 1203-1204 (fed.cir.2004) (stating that circumvention alone individuals who had a much more sophisticated understanding of the law. see, e.g., ge consumer & indus., inc., 622 f.3d 361, 366 (5th cir. 2010). circumventing or requiring both familiarity with consoles’ specialized circuitry and the technical deftness inc., 421 f.3d 1307, 1318 (fed. cir. 2005) (“[c]ourts generally have found a violation second, reichert asserts that the deliberate ignorance instruction incorrectly greater uncertainty. see generally joe linhoff, video games and reverse engineering: sony v. divineo, 9 n.c. j. l. & tech. 113, 115-118 (2007). similarly, installing a mod chip into a console too long could damage the board. as an example, the witness referenced one tpms that control access to copyrighted works, § 1201(a)(2). purchased by a consumer. id. at 446-466. tpms are useful and often necessary tools states, 548 u.s. 1, 5 (2006) (“[t]he term willfully . . . requires a defendant to have acted mod chips can also be used to remedy failures and solve problems in video game consoles, or to kern, chelsea s. rice, united states attorney’s office, cleveland, ohio, - forbids, the person need not be aware of the specific law or the rule his defense when the district court excluded belcik’s testimony indicating that reichert had report (“psr”) prepared in reichert’s case assigned him an offense level of 12 under in order to prevent the dmca from adversely affecting otherwise lawful uses that is, with the intent either to disobey or disregard the law. portion of the instruction could have been more precise, it was not given in a vacuum. we aren’t technically supposed to do it.” another agent, who had interviewed reichert conduct. reichert does not directly challenge the jury’s factual finding in this regard, as a moderator of a specialized internet discussion forum that was largely dedicated to during the search of his residence, testified that, while reichert “never stated to me that in the navy between 2004 and 2008 and that he was “away” in 2007 at the time of 816 f.2d 297, 300 (7th cir. 1987). reichert also concedes that the dmca’s willfulness console modification. in fact, reichert was lauded within the gaming community as one evidence. “trafficking liability under [17 u.s.c.] § 1201(a)(2)forfacilitatingsuchcircumvention.” corley, 273 f.3d 429, 435 (2d cir. 2001). knowledge and is not enough to convict. the provision’s statutory exceptions and subsequent exemptions added through software applications created by consumers rather than licensed developers.”) (citing mike musgrove, nintendo wii—to an undercover agent of the u.s. immigration and customs been thought to fall under an existing statutory exception, seems to have caused even copyright].” id. finally, although the issue on appeal is neither the weight nor sufficiency of the been overruled, belcik would have testified that reichert “indicated that he believed that circumvention more broadly. see mdy indus., llc v. blizzard entm't, inc., 629 f.3d provision and the technologies it governs, it is now possible to delve into the more of technologies that are used to control or restrict access to digital content or electronic no. 13-3479 usa v. reichert page 9 provision, § 1204(a), for trafficking in “service[s], device[s] . . . or part[s] thereof” 827, 834 (6th cir. 2011) (quoting bryan v. united states, 524 u.s. 184, 191 (1998)) cir.2001); realnetworks, inc. v. streambox, inc., 2000 wl 127311, at *7 (w.d.wash. marginal relevance to whether reichert believed in 2007 that his conduct was legal. next, i want to explain a little something about proving a defendant’s achieve the interoperability of video games across multiple platforms, based on its sophistication support the determination that his console-modification skills are lewis stevenson,faircircumvention:ajudicialanalysisfor the digital millennium copyright act using unlicensed ‘burnt’ game disc will not play in an unmodified playstation console . . . but law, but the fact that other portions of the jury instruction provided a more accurate 2008)). the court then gave the following deliberate ignorance instruction: more inclined to agree with the majority. here, however, an otherwise excusable fault the law imposed a duty on the defendant, that the defendant knew of this reichert’s total offense level offourteen and criminal history category of i subjected him of mind. however, the government correctly observes that belcik admitted that he was cannot agree with the majority that the additional confusion generated by a jury closed his eyes to what was obvious. implemented the pattern jury instruction and consequently eviscerated the dmca’s protection, copy protection, encryption, digital watermarking and, increasingly, rights was convinced that reichert: infringing purposes, some can also be used to access or reproduce copyrighted works reichert next claims that he was denied his constitutional right to present a iii. instruction, the district court gave an instruction on “willfulness,” explaining that an act he knew that he was violating the law by trafficking in such technology. although a sufficiently “special” where the driver possessed almost five years of truck-driving requires only “knowledge that the conduct is unlawful,” not knowledge of the specific for the northern district of ohio at cleveland. to establish that reichert “willfully” violated the dmca, as is required for conversations with reichert during the investigation testified that reichert seemed to b. constitutional right to present a defense. v. blanchard, 618 f.3d 562, 571 (6th cir. 2010); h.c. smith invs., l.l.c. v. outboard instruction, viewed as a whole, was prejudicial, or if the instructions confused or misled 608 f.3d 955, 962 n.3 (6th cir. 2010). and even “erroneous evidentiary rulings rarely sentence under the digital millennium copyright act (the “dmca”) asserting three number oflegitimate ways, but that also enabled the console to play unauthorizedpirated defendant’s conduct. majority that the additional confusion resulting from the instruction was harmless. no. 13-3479 usa v. reichert page 10 of the dmca only when the alleged access was intertwined with a right protected by the since we simply cannot know, to conclude otherwise would require impermissible forum discussion board, “ha ha, i meant that no one cares if people are doing installs. was basically a hardware modification, not dissimilar from any work that we would do jeffrey j. reichert, thought his conduct was illegal. defense counsel proffered that, if the objection had reichert’s decision to frame his argument in constitutional terms is significant. considered as a whole.” united states v. ross, 502 f.3d 521, 527 (6th cir. 2007). this case requires a sophisticated understanding of the technologies at issue and u.s.s.g. § 2b5.3(b)(3)(b) and added a two-point “special skills” enhancement under in support of reichert’s defense. if the evidence at trial had done more to establish the deliberately ignored a high probability that he was trafficking in technology primarily technological measure that effectively controls access to a work protected [by lewis stevenson, fair circumvention: a judicial analysis for the digital millennium viewed as a whole, permitted the jury to deliver a guilty verdict upon a lesser finding have done . . . [if] properly instructed”). that his skills were not as sophisticated as those at issue in united states v. petersen, 68 fed. reg. 62011 (oct. 31, 2003). one of those exemptions permitted the before instructing the jury on deliberate ignorance, the district court gave the generally speaking, circumvention technology is computer code that overrides 387 f.3d 522, 551-52 (6th cir. 2004) (“such a reading would ignore the precise technical computer skills “not . . . possessed by members of the general public.” prosecutor, and the court in defining criminal liability.” liporta, at 427-28 (citing bass, several others, but did little to clarify the legal status of mod chips and other instead, it was sandwiched between two instructions that stated the stricter requirement no. 13-3479 usa v. reichert page 16 2003), “[t]he district court’s conclusion that skills possessed by a defendant are ‘special’ while a person must have acted with the intent to do something the law at trial, the government put on evidence that modification chips are used to fool a hardware device. the dmca describes circumvention technology as any mechanism the jury convicted reichert on the indictment’s lone charge. the presentence enforcement’s (“ice”) anti-piracy enforcement group during an investigation known as 404 u.s. at 348). where “congressional purpose is unclear,” the rule of lenity “provides that was itself subject to various interpretations concerning the exact legal status of the console modifications is not entirely clear. have undermined the delicate balance that congress sought to achieve between the term “technological protection measure” (“tpm”) refers to a wide variety on a normal pc,” but the government objected. the district court sustained the objection _________________ instructions, viewed as a whole, improperly negated the dmca’s willfulness § 1204(a). no. 13-3479 usa v. reichert page 2 f.3d 548, 564 (6th cir. 2003) (“an appellate court reviews all evidentiary testified that reichert believed that some people were using modified consoles to play three years. see bill d. herman, oscar h. gandy, jr., catch 1201: a legislative history reichert was prosecuted under the dmca for trafficking in circumvention perhaps the most important of these exceptions is the “reverse engineering” it is undisputed that, standing alone, this portion of the jury instruction did not properly for sure, but it’s not for people, normal people. you can [s]crew stuff up if you are not been present for the jury to deliver a guilty verdict despite overwhelming the evidence copyrighted works by making such technologies available to the public. see kernochan bryan v. united states, 524 u.s. 184, 191 n.12, 13 (1998); the term marks a distinction view, it did not. accordingly, the judgment should be reversed because the instruction, quotation marks omitted). standard rules of evidence.” united states v. blackwell, 459 f.3d 739, 753 (6th cir.


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