United States v. Wittich
| Decision Date | 10 October 2014 |
| Docket Number | Criminal Action No. 14–35. |
| Citation | 54 F.Supp.3d 613 |
| Court | U.S. District Court — Eastern District of Louisiana |
| Parties | UNITED STATES v. Rainer WITTICH. |
Jordan Ginsberg, U.S. Attorney's Office, New Orleans, LA, for United States.
ORDER AND REASONS
In this criminal action, the United States has accused defendants Rainer Wittich and The Brinson Company (“TBC”) of willfully and for purposes of financial gain: (1) conspiring1 to infringe a copyright,2 circumventing a technological measure that effectively controlled access to work protected under Title 17 of the United States Code,3 and trafficking in a technology designed and produced to circumvent a technological measure that effectively controlled access to a work protected under Title 17 of the United States Code (“Count 1”);4 (2) infringing copyrighted work, (“Counts 2–3”);5 and (3) trafficking in technology designed to circumvent copyright protection systems (“Count 4”).6 Pending before the Court is Defendants Rainer Wittich and the Brinson Company's “Motion to Dismiss.”7 Having considered the pending motions, the memoranda in support, the memoranda in opposition, and the applicable law, the Court will deny the pending motion.
On February 13, 2014, a grand jury indicted Wittich and TBC on charges of conspiracy, copyright infringement, trafficking in technology designed to circumvent copyright protection systems, and circumventing a technological measure that protects a copyrighted work.8 On May 29, 2014, a grand jury authorized a superseding indictment accusing Wittich and TBC of: (1) conspiring9 to infringe a copyright,10 circumvent a technological measure that effectively controlled access to work protected under Title 17 of the United States Code,11 and traffic in a technology designed and produced to circumvent a technological measure that effectively controlled access to a work protected under Title 17 of the United States Code (“Count 1”);12 (2) infringing a copyrighted work, (“Counts 2–3”);13 and (3) trafficking in technology designed to circumvent copyright protection systems (“Count 4”).14 Wittich and TBC were arraigned on June 9, 2014.15 On July 31, 2014, Wittich and TBC filed the instant motion to dismiss the superseding indictment.16 The Court heard oral argument on the motion on August 21, 2014, and ordered the parties to provide supplemental briefing on the issues raised by the motion.17 The parties timely filed supplemental briefs.18
In their motion to dismiss the indictment, Wittich and TBC argue: (1) “the [G]overnment has not properly alleged the copyright at issue here”; (2) even if the [G]overnment has “properly pled the existence of a copyright, there is no evidence that this copyright was registered with the Copyright Office,” which is a “prerequisite to a copyright infringement claim;” and (3) assuming that the government can overcome the “hurdles” just described, “the copyright statutory scheme is vague as applied to these defendants, and therefore, should be rendered unconstitutional.”19
In support of their argument that the government has not properly alleged a copyright, Wittich and TBC contend that the superseding indictment states the statutory elements of a copyright infringement offense, and refers to “proprietary software” and “confidential, proprietary trade secret information,” without alleging that any of the purportedly protected works were actually copyrighted.20
Wittich and TBC also maintain that there is no evidence that this copyright was registered with the Copyright Office.21 Pointing to statutes authorizing civil enforcement of copyright infringement claims, Wittich and TBC contend that the existence of a registered copyright is a necessary prerequisite to maintain a civil action under an infringement theory.22 Until 2008, Wittich and TBC maintain, the statutory provision requiring registration made no distinction between civil and criminal actions.23 Wittich and TBC allege that, although Congress did not provide an analogous provision requiring registration in criminal proceedings, “numerous courts have noted the lock step linkage between civil and criminal copyright principles.”24 Accordingly, Wittich and TBC contend, the registration requirement should apply in the criminal context, despite a paucity of case law on point.25 In support of this proposition, Wittich and TBC cite U.S. v. Backer and U.S. v. Beltran.26 According to Wittich and TBC, the court in Backer reasoned that the question of registration is “of vital importance,” and that registration was required in both civil and criminal actions, while the court in Beltran noted that it “appeared” that registration was required in both civil and criminal actions.27
Wittich and TBC argue that the rule of lenity supports applying the registration requirement in the criminal context, since the fact that Congress stated that the registration requirement applied in civil enforcement proceedings, but failed to state that it did not apply in criminal proceedings, renders the statute unclear and ambiguous.28 Wittich and TBC point, apparently by analogy, to patent and trademark statutes.29 In the trademark context, Wittich and TBC contend that registration is a necessary prerequisite to criminal liability, whereas in the patent context, registration is a necessary prerequisite to civil liability.30 Wittich and TBC argue that since copyright infringement, like patent and trademark infringement, is malum prohibitum —an act that is illegal “because a statute makes it so,” rather than because it is “naturally evil as adjudged by the sense of a civilized community”—individuals “have no way to know if their conduct is prohibited” in the absence of a registration requirement.31
Finally, Wittich and TBC assert that if the Government has properly alleged a copyright, and need not allege a registered copyright, the statute is unconstitutional as applied to his prosecution, because it does not give him “fair notice of what behavior is proscribed.”32 According to Wittich and TBC, courts adjudicating civil copyright infringement cases have recognized that the purpose of the copyright registration requirement is to provide individuals with notice.33 In the present case, notice is “even more necessary, due to the potential loss of liberty in a criminal prosecution.”34
In opposition, the Government argues that (1) “[t]he indictment clearly and sufficiently alleges the existence of a copyright”35 ; (2) “[c]opyright registration is not required for criminal prosecution”;36 and (3) “[t]he criminal copyright infringement statute is not unconstitutionally vague,” because it requires that a defendant possess the mens rea of “willfulness”—in other words, to commit an “intentional violation of a known duty.”37
The Government contends that the indictment clearly and sufficiently alleges the existence of a copyright because it states that Wittich and TBC infringed on the proprietary SDS software.38 According to the government, the indictment “clearly tracks the elements of the statutes charged and also goes well beyond that, providing an extensive set of factual allegations which make very clear the government's theory of prosecution,” thereby preventing Wittich and TBC from alleging any prejudice arising from the wording of the indictment.39
The Government next contends that registration is not required for copyright protection or copyright prosecution, because the Copyright Act provides that copyright inheres from the creation of a work, and expressly states that registration is only a prerequisite for civil actions.40 According to the Government, since the plain language of the statute is clear, the rule of lenity does not counsel in favor of applying the registration requirement in this criminal case.41 In further support of this proposition, the Government cites the legislative history associated with the 2008 amendment to the civil enforcement provision of the Copyright Act.42 According to the Government, the 2008 amendment merely clarified an already-existing rule that registration was not required in the criminal context.43 The Government also contends that Backer and Beltran, cited by Wittich and TBC, are inapposite because they address the statutory scheme in effect before the 2008 amendments.44
Finally, the Government argues that the criminal copyright statute is not unconstitutionally vague, because it requires willful violation—that is, the “voluntary intentional violation of a known legal duty.”45 Therefore, the Government asserts, the criminal copyright infringement statute protects individuals from conviction if those individuals did not know that their conduct was unlawful.46
In their reply brief in further support of the pending motion, Wittich and TBC contend that the Government has not shown that the SDS software was copyrighted, and cannot point to any case in which a court sustained an application of the criminal copyright statutes to a work that was not registered in the United States.47 Indeed, Wittich and TBC argue, the indictment does not allege that the works at issue here were “copyrighted” at all.48 Wittich and TBC further contend that although the Beltran court “stated in dicta that the registration requirement appears to apply only in civil cases,” the parties in that case “stipulated to the certificates of registration.”49
In their supplemental memorandum in support of the pending motion, Wittich and TBC assert that the criminal copyright statute is unconstitutionally vague as applied in his case, because (1) when a work is not registered, the statute “fails to provide defendant with notice as to what conduct is proscribed”50 ; and (2) the lack of a registration requirement “strips the Copyright office of its...
To continue reading
Request your trial