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Nov 12

Elle Woods on Criminal Intent: Ninth Circuit Requires Specific Intent for Criminal Copyright Infringement

In the movie Legally Blonde, upon assuming the role of lead defense counsel in the murder trial of her sorority sister, the heroine Elle Woods sought to skip the examination of a key witness and instead jump straight into an argument regarding her client’s criminal intent:

First of all, I would like to point out that there is no proof in this case but there is a complete lack of “mens rea” which by definition tells us that there can be no crime without vicious will.

While the trial court in Commonwealth v. Brooke Taylor-Windham quickly rebuffed Ms. Woods and instructed her to examine the witness, Ms. Woods’ attempted closing argument raised a question that courts continue to address:  what is the requisite mental state for conviction?

Today, the Supreme Court heard argument in Rosemond v. United States, addressing the question of what is the mens rea required for aiding and abetting liability under 18 U.S.C. § 924(c), which prohibits, among other things, the use of a gun during a narcotics offense.

But such questions of mental state are not relegated to gun and drug crimes.  Recently, the Ninth Circuit jumped into the mens rea fray in connection with the conviction of a defendant for criminal copyright infringement.  In United States v. Liu, No. 10-10613 (9th Cir. Oct. 1, 2013), the court reviewed the conviction of the defendant, Julius Liu, who operated a commercial CD and DVD replication company, Super DVD.  After Immigration and Customs Enforcement agents raided his warehouse, Liu was indicted and convicted on three counts of criminal copyright infringement arising out of possession of counterfeit music CDs, Crouching Tiger, Hidden Dragon DVDs, and Norton Anti-Virus software, as well as one count of trafficking in counterfeit labels.  At trial, Liu testified that he was unaware that his clients did not have copyright permission to replicate the materials.

The court made clear that in civil actions the copyright statute imposes strict liability.  In contrast, however, criminal copyright infringement requires that the defendant act “willfully,” which the court concluded was ambiguous.  On one hand, this “willfulness” element could require only that the defendant “intentionally commit the act that constitutes infringement.”  But on the other, the court noted that “it could mean that the defendant must act with a ‘bad purpose’ or ‘evil motive’ in the sense that there was an intentional violation of a known legal duty.”

Resolving this ambiguity, the court explicitly held that “willfully” as used in the criminal copyright statute “connotes a voluntary, intentional violation of a known legal duty.”  In fact, the court explained that the very act of copying is an intentional act.  Thus, reading the statute to require merely the intent to copy the work, without requiring that the defendant know that he was committing copyright infringement, would render the distinction between civil and criminal copyright infringement meaningless in the vast majority of cases.  Similarly, the court held that the term “knowingly” in the statute criminalizing the trafficking of counterfeit labels requires that the defendant know that the labels were counterfeit.

In interpreting the criminal copyright infringement statute to draw a distinction between civil enforcement and criminal prosecution, the Ninth Circuit rendered a decision that would have made Elle Woods proud:  requiring an “evil motive” or, in Ms. Woods’ parlance, a “vicious will” for conviction.


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