Appeals Court Upholds Conviction of Man Charged With Selling Modded Wii

The U.S. Court of Appeals (Sixth Circuit) has upheld the conviction of Jeffrey Reichert, who was charged and convicted under the Digital Millennium Copyright Act for trafficking in technology that modifies video game consoles.

Reichert moderated an online forum that gave instructions on how to modify video game consoles using "modification chips." In 2007, Reichert sold a modified Nintendo Wii gaming console to an undercover agent for $50. He was later charged under the anti-trafficking provisions of the Digital Millennium Copyright Act. To find criminal liability, prosecutors had to prove that the violation of the DMCA was "willful."

At his 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 in cases where the wrongdoer is not aware of the specific law or rule that is being violated. The jury was also instructed that willfulness could be found 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.

In his appeal, Reichert challenged the deliberate ignorance instruction, which he claims informed the jury that his 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.

In its decision of the Appeals case ruling, the court acknowledged that the challenged language in the jury instructions without more context was "mildly imprecise," but the overall jury instruction as a whole was proper. Ultimately the court found the jury instructions on the issue of willfulness to be proper and affirmed the district court’s conviction.

In a dissenting opinion, Circuit Judge Donald disagreed that the "misstatement in the jury instructions" was harmless to Reichert’s defense, because the DMCA’s anti-circumvention provision is subject to varying interpretations. 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.

Source: National Law Review

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