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Defending criminal copyright infringement cases

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Computer hard drive. (Image from Pacific Northwest Laboratory’s website).

According to a posting at lawyer Allan Ellis’s website, the United States Sentencing Commission reports that 94% of federal criminal cases result in guilty pleas. This week, my client and I bucked that trend by proceeding to a jury trial in Alexandria, Virginia, federal court for alleged criminal copyright infringement. Wired’s blog describes my trial as the first federal trial for online criminal copyright infringement that primarily involved music; that does not mean that others have not entered guilty pleas for such accusations, because they have.

For this trial, I had the pleasure of working with a top-notch computer forensics expert, with whom I previously worked for child pornography defense. The technology is too involved to proceed without such an expert for advice and possible testimony.

As it happens, only two weeks before our trial began, the Fourth Circuit addressed the method for valuing allegedly infringed copyrighted material for criminal prosecutions. U.S. v. Armstead, ___ F.3d ___ (May 6, 2008). In pertinent part, the court said:

[T]he government proffered evidence that the "suggested retail price" of each of the DVDs sold by Armstead was between $25 and $30 per copy, but the district court excluded that evidence precisely because it was only suggested, and not actual. This was error, however, because the suggested retail price was relevant to determine a "face value" or "par value" that would be especially relevant to determining prerelease retail value. Indeed, the House Report that accompanied the bill for [18 U.S.C.] § 2319 explicitly noted that for unreleased movies, courts could look at suggested retail prices. H.R. Rep. No. 102-997, at 6-7. And since there would be evidence of both face value (had the court properly allowed it) and market value, the higher would be applicable in determining the threshold amount for a felony conviction under § 2319(b)(1).

The relevance of valuing allegedly infringed copyrighted material is addressed in the criminal copyright infringement statute at 18 U.S.C. § 2319, whose text is here.

If you are a lawyer who is defending or has defended such cases — or if you know of such lawyers — please let me know.  Jon Katz