U.S. v. Goss

• Decision Date: 03 November 1986
• Docket Number: No. 85-8930,85-8930
• Citation: 803 F.2d 638
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: , 1986 Copr.L.Dec. P 26,023 UNITED STATES of America, Plaintiff-Appellee, v. Tom GOSS, Defendant-Appellant.

Page 638

803 F.2d 638

231 U.S.P.Q. 730, 1986 Copr.L.Dec. P 26,023

UNITED STATES of America, Plaintiff-Appellee, v. Tom GOSS, Defendant-Appellant.

No. 85-8930.

United States Court of Appeals Eleventh Circuit.

Nov. 3, 1986.

Rehearing Denied Oct. 17, 1989.

Eugene A. Medori, Jr., Decatur, Ga., Charles Eugene Goss, Harlan, Ky., for defendant-appellant.

Lark I. Tanksley, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and EDMONDSON, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

Appellant Tom Goss was convicted for infringing copyright by distributing copies of audiovisual works of the video games Karate Champ and Kung Fu Master. An owner of a legally made copy, however, is entitled to sell or otherwise dispose of that particular copy without the copyright owner's authorization. 17 U.S.C. Sec. 109(a). In this case, the copies in which the audiovisual works were fixed were memory chips, also known as ROMs. The government totally failed to prove that the ROMs which Goss sold were illegally made or unowned by Goss, apparently because it did not realize that the ROMs were the copies. Instead, the government attempted to show that the circuit boards which Goss sold were "counterfeit."

At oral argument, the government forthrightly conceded that at trial it did not address the ROM issue at all. More specifically, the government conceded that at trial it never contended that the pertinent ROMs, themselves, were from illegitimate manufacturers. Because there was insufficient evidence against Goss, we hold that his motion for judgment of acquittal should have been granted and reverse with directions to enter a judgment of acquittal.

The first count of Goss's indictment charged him with criminally infringing

the copyrights of audiovisual works ... for the purposes of commercial advantage and private financial gain [by] distribut[ing more than seven but less than sixty-five] unlawfully manufactured and unauthorized copies of the audiovisual works "Karate Champ" and "Kung Fu Master".... (emphasis added).

Although the indictment included a second count, that count was dismissed on the government's motion.

At trial, the government attempted to prove Goss's guilt by showing that Irem Corp. ("Irem") and Data East, Corp. ("Deco"), two Japanese corporations, developed the Kung Fu Master and Karate Champ video games, respectively. These corporations transferred a portion of their rights as copyright holders in these games to Data East, U.S.A., an American company. Among the rights so transferred was the exclusive right to distribute these games in North America.

The government's evidence showed that Goss sold to an undercover F.B.I. agent four circuit boards for the Kung Fu Master game and five entire Karate Champ games in upright cabinet form. Moreover, a government witness, who is employed as vice-president of Data East, U.S.A., testified that Goss was not authorized to distribute these.

The government presented evidence that the five upright Karate Champ games sold by Goss displayed the same visual images and sounds as did an authorized, factory-made Karate Champ game. Likewise, when attached to a power supply and other hardware, the four Kung Fu Master circuit boards sold by Goss produced the same sights and sounds as did an authorized Kung Fu Master game.

During the trial, the government attempted to prove that the circuit boards sold by Goss, including the five in the upright complete games, were "counterfeit." To show this, the government demonstrated that Goss's boards lacked the manufacturer's label and custom chip which were affixed to authorized boards.

The government also played tape recordings of conversations in which Goss agreed to sell the games. In the first conversation, the undercover F.B.I. agent referred obliquely to a "problem." Goss responded by saying "ya can't be too brave or conspicuous with it. Ya gotta use a little common sense." Shortly thereafter, Goss also stated that the legal expenses of "pull[ing] a game off" are so great that "[t]here's nobody left that's got the money to pursue it." In this tape-recorded conversation, Mr. Goss also said that:

The one thing they're after is the people that's bringing' the boards in the country. That's the ones they, they've never, I don't reckon they've ever got after an operator.... And if they do come in, all you gotta say is, you know, I bought this thing and so, off of so and so's truck or I bought it at an auction or somethin'. And the worst you're gonna lose, you're gonna lose the game.

After the government rested its case, Goss moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29, on the grounds that the government did not present sufficient evidence to sustain a conviction. At the close of all evidence, Goss renewed this motion. Both times, the judge denied it. The jury returned a verdict of guilty as charged.

Goss raises numerous arguments on appeal. One of Goss's contentions is that the district court erred by denying his motion for acquittal, because the government presented insufficient evidence that the copies which he sold were illegally made or that he did not own them. ¹ Since we agree with this contention, we do not address Goss's other arguments. ²

We apply a rigorous standard of review. A criminal conviction can be reversed by an appellate court for insufficiency of evidence only if a reasonable jury could not have found that the evidence established guilt beyond a reasonable doubt. When determining whether the evidence was insufficient, an appellate court must view the evidence and the inferences which can be drawn therefrom in the light most favorable to the government. See United States v. Shabazz, 724 F.2d 1536, 1539 (11th Cir.1984); United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). ³

To determine whether the government presented sufficient evidence that Goss illegally distributed copies of audiovisual works, it is necessary to identify precisely the audiovisual works and the copies in which they were fixed. The Act defines an "audiovisual work" as a work:

that consist[s] of a series of related images which are intrinsically intended to be shown by the use of machines or devises such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

17 U.S.C. Sec. 101. Thus, the visual images and sounds of the video games, Kung Fu Master and Karate Champ, constitute "audiovisual works". Such video game audiovisual works can be copyrighted. United States v. O'Reilly, 794 F.2d 613, 614 (11th Cir.1986); Midway Mfg. Co. v. Artic International, Inc., 704 F.2d 1009, 1011-12 (7th Cir.) cert. denied, 464 U.S. 823, 104 S.Ct. 90, 78 L.Ed.2d 98 (1983); Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870, 873-75 (3d Cir.1982); Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 857 (2d Cir.1982).

Under section 101 of the Act, "copies" are defined as:

material objects, other than phonorecords, in which a work is fixed by any method now known, or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device....

17 U.S.C. Sec. 101. A video game has a number of physical components: e.g., a power supply, display screen, outer cabinet with graphics, controls (such as the "joy stick" and firing buttons), a circuit board, and memory chips attached to the circuit board. The material object or "copy" in which the audiovisual work is fixed must be one or more of these components.

At trial, the government attempted to show that the circuit boards were "counterfeit," which suggests that it believed that the entire circuit boards--including the hardware and attached memory chips--constituted the copies. The government appeared confused at oral argument regarding what were the copies. When asked to identify the copies which Goss sold, the government responded that the audiovisual works were the copies. This answer misconceives the statutory definition of "copies": "work" and "copy" are not synonymous terms; rather, a copy is the material object in which a work is fixed.

Goss presented uncontradicted testimony by two experts that the copies in which the audiovisual works were fixed were memory chips. Such memory devices can be either ROMs (read only memory), PROMs (programmable read only memory) or E-ROMs (erasable read only memory), and are sometimes referred to generically as ROMs.

Mr. Leskey, one of Goss's expert witnesses, testified that the memory which is programmed into the ROMs in a video game includes

[a]ll of the memory in the unit, that is, all of the video or visuals, the foreground objects, the background imagery, the sound patterns, the controls for the sound patterns, the entire system controls ... as to how the game operates, the logic of the game, how you win or lose....

This testimony was uncontested.

Moreover, Goss presented uncontradicted expert testimony that the ROM chips in this case were placed in sockets on the circuit boards, and could be removed from the circuit boards. By replacing one set of ROM chips with another, these experts testified, it is possible for the same circuit board to produce many different games.

Also, Goss presented uncontroverted expert testimony that the circuit board is simply hardware which responds to instructions from the software (i.e., the program stored in the memory chips). One of Goss's experts testified that the circuit board is a mechanism similar to a video cassette player, whereas the set of ROMs is a copy similar to a video cassette tape. Another of Goss's expert's analogized the ROM chips to...