Metropolitan News-Enterprise


Wednesday, October 2, 2013


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Panel Scores Jury Instructions, Throws Out Conviction In ‘Super DVD’ Copyright Infringement Case


By a MetNews Staff Writer


Defective jury instructions require that a convicted pirate of copyrighted music, software and films be given a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel threw out Julius Liu’s convictions and four-year sentence for criminal copyright infringement and trafficking in counterfeit labels. District Judge James Ware of the Northern District of California—now retired—failed to explain to jurors what governing statutes meant by requiring that the crimes be committed “willingly” or “knowingly,” Judge Jacquelyn H. Nguyen wrote for the panel.

Julius Liu was arrested in 2003 for allegedly making illegal copies of films through his Hayward-based company Super DVD, which began experiencing serious financial difficulties about two years before it was raided by federal agents.

Prosecutors claimed that Liu made thousands of CD and DVD copies of Beatles, rap and Latin music, Norton Antivirus software and the film Crouching Tiger, Hidden Dragon without permission from the copyright holders.

Liu admitted at trial that he had made the copies, but claimed that he had no idea that the clients who hired him to do so did not hold the copyrights.

Ware told jurors that “[a]n act is done ‘knowingly’ if the defendant is aware of the act and does not act through ignorance, mistake or accident” and that prosecutors “were not required to prove that the defendant knew that his act was unlawful.”

Jurors found Liu guilty on three counts of criminal copyright infringement under 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1) based on the music CDs, the movie DVD, and the Norton AntiVirus software. They also convicted him of label trafficking based on the counterfeit labels on the software, in violation of 18 U.S.C. § 2318(a).

Nguyen said the instructions failed to explain the standard of scienter required for a criminal conviction.

 “Under the relevant criminal statutes, Liu’s guilt turns on whether he acted ‘willfully’ and ‘knowingly’,” the judge wrote. “We hold that the term ‘willfully’ requires the government to prove that a defendant knew he was acting illegally rather than simply that he knew he was making copies.”

Nguyen criticized the district judge for giving a definition of “willfully infringed” that lacked “any requirement that the defendant knew he was committing copyright infringement.” In doing so he “instructed the jury to apply a civil liability standard,” the judge found.

The ruling, which was joined by Senior Judges John T. Noonan and Raymond C. Fisher, also requires dismissal of the count based on illegal copying of Crouching Tiger, Hidden Dragon.

The panel said Liu’s attorney had failed to recognize that the statute of limitations on that charge had run. The error and its prejudicial nature were sufficiently obvious that a finding of ineffective assistance can be made on direct appeal, the court ruled.

“We agree with Liu that he had no notice whatsoever that he should prepare to be prosecuted for willfully infringing a motion picture work until the second superseding indictment,” Nguyen wrote. “He was alleged to have infringed it between 2001 and 2003, but the second superseding indictment was not returned until 2010. The delay in bringing this charge is longer than the law permits.”

The case is United States v. Liu, 10-10613.


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