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: The Patry Copyright BlogIt was a Crime Alright but was it Pled Properly?
By Senior Copyright Counsel, Google Inc.
Defendant was charged with "fraudulently or knowingly import[ing] ... merchandise contrary to law." He was charges with violating 18 USC 545, which pretty much states what I just quoted. But what was the law that defendant acted contrary to? Obviously the copyright act, but the government never referred to any statute other than Section 545, nor specified at any time how the proof met the contrary to law element of Section 545. This failure, the court of appeals noted, "[w]ithout question ... caused considerable confusion for Teh, the government, and the district court." The indictment did allege that the DVDs were "counterfeit" and "in violation of ... copyrights," but as defendant pointed out "a copyright is not a law."
In the end, the court of appeals confirmed the conviction, as a kind of harmless error, but there is nothing harmless in this type of counterfeiting: it is a cancer on the motion picture industry, and a quite appropriate use of government resources to stop it. Hopefully, in light of the Teh case, some of those resources will be allocated to proper drafting of indictments.
H.T. to C.E. Petit.
Full post as published by The Patry Copyright Blog on August 01, 2008 (boomark / email).
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