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John C. Gatz is a member of the firm Nixon Peabody LLP in Chicago. Column contributors include the following writers. Copyrights: Zachary J. Smolinski, Panduit Corporation; Michael N. Spink, Brinks, Gilson, & Lione; Mark R. Anderson, Akerman LLP. Patents: Cynthia K. Barnett, Johnson & Johnson; Timothy M. Kowalski, Google Inc.; R. Trevor Carter and Daniel M. Lechleiter, Faegre Baker Daniels LLP; Robert W. (Bill) Mason, Kinetic Concepts, Inc. Trade Secrets: R. Mark Halligan, Nixon Peabody LLP. Trademarks: Janet M. Garetto and Elizabeth W. Baio, Nixon Peabody LLP; Amy L. Sierocki.
United States v. Liu, 731 F.3d 982, 108 U.S.P.Q.2d 1371 (9th Cir. 2013). Liu owned a CD and DVD replication company and was convicted of criminal copyright infringement under 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1) for making and distributing illegal copies of a motion picture, a software program, and various musical works, and was also convicted under 18 U.S.C. § 2318(a) for trafficking in counterfeit labels for the software program. Liu appealed and the Ninth Circuit vacated the convictions.
Liu argued that the district court provided an improper jury instruction regarding the meaning of the willfulness element of criminal copyright infringement. The Ninth Circuit noted that ambiguity existed in what the government needs to show willful infringement, such that it could mean either that the act the defendant took was willful, or that the defendant intended to violate a known legal obligation. Looking to precedent, the Ninth Circuit determined that criminal copyright infringement requires the government to show that the defendant intended to violate someone’s copyright. The Ninth Circuit noted that 17 U.S.C. § 506(c) provides that “evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.” Therefore, the Ninth Circuit found that the jury instruction was improper because it would allow Liu to be convicted without requiring the government to prove that Liu knew his actions violated someone’s copyright, and vacated the convictions for copyright infringement.