USA v. Jeffrey Reichert

Filing

OPINION and JUDGMENT filed : Reichert's conviction and sentence are AFFIRMED. Decision for publication. John M. Rogers, Richard Allen Griffin (AUTHORING), and Bernice Bouie Donald (DISSENTING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0060p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 13-3479
v.
>
,
JEFFREY J. REICHERT,
Defendant-Appellant. N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:12-cr-00177-1—Donald C. Nugent, District Judge.

Argued: October 4, 2013
Decided and Filed: March 28, 2014
Before: ROGERS, GRIFFIN, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Darin Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Robert W. Kern, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Darin Thompson, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Robert W.
Kern, Chelsea S. Rice, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee.
GRIFFIN, J., delivered the opinion of the court, in which ROGERS, J., joined.
DONALD, J. (pp. 15–27), delivered a separate dissenting opinion.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Jeffrey J. Reichert appeals his criminal conviction and
sentence under the Digital Millennium Copyright Act (the “DMCA”) asserting three
grounds: (1) that the jury received an inaccurate “deliberate ignorance” instruction that

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had the effect of negating the requirement that Reichert’s conduct be a “willful”
violation of the DMCA; (2) that the exclusion of a defense witness’ testimony violated
Reichert’s constitutional right to present a defense; and (3) that he was improperly
assessed a “special skills” sentencing enhancement under U.S.S.G. § 3B1.3. We hold
that the jury instructions as a whole properly stated the law, the excluded testimony was
not so vital to Reichert’s defense that its exclusion caused him constitutional injury, and
Reichert’s self-taught technical expertise merited a § 3B1.3 enhancement. We therefore
affirm.
I.
“Congress enacted the DMCA in 1998 to comply with international copyright
treaties and to update domestic copyright law for the online world.” Ellison v.
Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). In large part, the DMCA was intended
to give copyright owners additional means to protect copyrighted materials in the digital
age. Although copyright owners often attempted to protect digitized materials behind
digital passwords or encryption codes, “[p]rior to the DMCA, a copyright owner would
have had no cause of action against anyone who circumvented any sort of technological
control, but did not infringe [the copyright].” Chamberlain Group, Inc. v. Skylink
Technologies, Inc., 381 F.3d 1178, 1195–96 (Fed. Cir. 2004). Due to the ease of digital
piracy, copyright owners feared that the ability to pursue only infringers, rather than
those who “picked the lock” and enabled the infringement to occur in the first place, was
inadequate to protect their copyrighted material. See Universal City Studios, Inc. v.
Corley, 273 F.3d 429, 435 (2d Cir. 2001).
In response to this problem, the DMCA gave copyright owners a remedy against
those who did not themselves infringe a copyright but instead circumvented
technological controls and thereby enabled others to infringe. It did so by creating both
“circumvention liability for digital trespass under [17 U.S.C.] § 1201(a)(1),” and
“trafficking liability under [17 U.S.C.] § 1201(a)(2) for facilitating such circumvention.”
Chamberlain Group, 381 F.3d at 1196. Thus, the DMCA “targets the circumvention of
digital walls guarding copyrighted material (and trafficking in circumvention tools),”

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even though it “does not concern itself with the use of those materials after
circumvention has occurred.” Corley, 273 F.3d at 443; see also MGE UPS Sys., Inc. v.
GE Consumer & Indus., Inc., 622 F.3d 361, 366 (5th Cir. 2010). Circumventing or
trafficking in circumvention tools in violation of § 1201 is a criminal offense if it is
committed “willfully” and for commercial or private financial gain.

17 U.S.C.

§ 1204(a).
Reichert was prosecuted under the DMCA for trafficking in circumvention
technology. Federal agents had begun investigating Xbox-scene.com, a website that
hosted online forums dedicated to the discussion of modifying video game consoles by
installing “modification chips” (or “mod chips”) in them so that they could run software
for which the consoles were not originally designed. Reichert was one of the moderators
of the discussion forums hosted on Xbox-scene.com, and an undercover agent contacted
him in 2007, requesting a modified Nintendo Wii. Reichert responded to the agent’s
requests, purchased a Wii, installed a modification chip, and sold the modified Wii to the
agent for a $50 profit. When the Wii was tested, it was able to play both legitimate
video games and pirated ones. Agents subsequently obtained a search warrant and
seized modification chips, a soldering iron, computers, and business cards advertising
Reichert’s services from Reichert’s residence, as well as from the garage of one of his
friends, Kevin Belcik. Reichert ultimately was charged in a one-count indictment under
17 U.S.C. § 1201(a)(2)(A), which prohibits, in relevant part, the trafficking of any
technology that “is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a work protected [by
copyright].” Id.
At trial, the government put on evidence that modification chips are used to fool
or bypass a game console’s security measures and enable users to run software for which
the console was not originally intended. One of the government’s expert witnesses
testified that the “primary purpose” of modification chips is to enable a user to play
pirated video games. Although each particular hardware version of a console requires
its own specialized modification chip, the government’s witness detailed in general

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terms how a modification chip would typically be installed: the console would be
opened, and wires from the modification chip would be soldered to the appropriate
locations on a console’s circuit board. According to the witness, it is a “pretty
complicated process,” given that the modifier needs to identify the proper locations to
which to attach the wires and because holding a soldering iron on the circuit board for
too long could damage the board.

As an example, the witness referenced one

modification that required soldering twenty-nine individual wires to the circuit board.
Several online postings were also admitted against Reichert at trial. In one,
Reichert informed an inquirer that a specific type of modification chip “is the best chip
for sure, but it’s not for people, normal people. You can [s]crew stuff up if you are not
careful.” In another, an Xbox-scene.com user lauded Reichert as “the only person . . .
on any forum that knew there was another way beside the 29 wire mod” to modify a
certain type of console. Some of Reichert’s other online postings directed forum users
to sites and chat rooms where they could obtain pirated games and thwart console
manufacturers’ ability to detect that their consoles were modified.
One government agent noted that in March 2007, Reichert posted on an online
forum discussion board, “ha ha, I meant that no one cares if people are doing installs.
We aren’t technically supposed to do it.” Another agent, who had interviewed Reichert
during the search of his residence, testified that, while Reichert “never stated to me that
it was illegal to [sell and install modification chips], . . . he did state that he knew the
mod chips were in a gray area.” Finally, although one agent testified that Reichert did
not knowingly order his modified chips from an international source, another witness
testified that “it is pretty well known among the community that in the United States
mod chips without licenses are illegal.”
After the conclusion of the prosecution’s case, Reichert’s friend Belcik testified
as the lone witness on Reichert’s behalf. Belcik testified that he and Reichert learned
in a “vocational program in high school” how to build computers, and that Reichert
modified his first Xbox in about 2003, while in eleventh or twelfth grade. Belcik
testified that Reichert believed that some people were using modified consoles to play

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illegal software. Belcik began to state that Reichert “indicated that what he was doing
was basically a hardware modification, not dissimilar from any work that we would do
on a normal PC,” but the government objected. The district court sustained the objection
and refused to allow Belcik to testify about whether Reichert had ever stated whether he
thought his conduct was illegal. Defense counsel proffered that, if the objection had
been overruled, Belcik would have testified that Reichert “indicated that he believed that
modifying the hardware was legal but selling the copyrighted games was illegal.”
Before the jury was instructed, Reichert objected to the proposed instruction on
deliberate ignorance, contending that “deliberate actions” must be proven in order to
prove deliberate ignorance. The district court overruled Reichert’s objection and
declined to give the alternative deliberate ignorance instruction proposed by Reichert.
Before instructing the jury on deliberate ignorance, the district court gave the
following instruction on “willfulness”:
As used in these instructions, an act is done willfully if it is done
voluntarily and intentionally with the intent to do something unlawful,
that is, with the intent either to disobey or disregard the law.
While a person must have acted with the intent to do something the law
forbids, the person need not be aware of the specific law or the rule his
conduct is violating. Willfulness requires the Government to prove that
the law imposed a duty on the Defendant, that the Defendant knew of this
duty, and that he voluntarily and intentionally violated that duty.
The court then gave the following deliberate ignorance instruction:
Next, I want to explain a little something about proving a Defendant’s
knowledge. No one can avoid responsibility for a crime by deliberately
ignoring the obvious. If you are convinced that the Defendant
deliberately ignored a high probability that he was trafficking in
technology primarily designed to circumvent technological measures
designed to effectively control access to a work copyrighted under
federal law, then you may find that he knew he was violating the Digital
Millennium Copyright Act.
But to find this, you must be convinced beyond a reasonable doubt that
the Defendant was aware of a high probability that he was violating the

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Digital Millennium Copyright Act, and that the Defendant deliberately
closed his eyes to what was obvious.
Carelessness or negligence or foolishness on his part is not the same as
knowledge and is not enough to convict.
The jury convicted Reichert on the indictment’s lone charge. The presentence
report (“PSR”) prepared in Reichert’s case assigned him an offense level of 12 under
U.S.S.G. § 2B5.3(b)(3)(B) and added a two-point “special skills” enhancement under
U.S.S.G. § 3B1.3, concluding that Reichert’s crime was facilitated by his possession of
technical computer skills “not . . . possessed by members of the general public.”
Reichert’s total offense level of fourteen and criminal history category of I subjected him
to an advisory Guidelines range of fifteen to twenty-one months.
Reichert objected to the special skills enhancement, but the district court
overruled his objection, expressing its opinion that the enhancement was proper.
Nevertheless, the court observed that Reichert was “getting a tough deal” and varied
downward “two levels” from the Guidelines, ultimately sentencing Reichert to twelve
months and one day of imprisonment. Reichert now appeals his conviction and
sentence.
II.
A. Jury instructions.
Reichert’s first line of argument, which implicates the jury’s finding that his
conduct was “willful,” is notably narrow. Reichert does not argue that the pertinent
portions of the DMCA are so vague or of such uncertain application that no defendant
could know that his conduct was actually illegal. Nor does Reichert challenge any of the
jury’s findings—including its willfulness finding—as supported by insufficient
evidence.
Instead, Reichert claims that the jury was given a deliberate ignorance instruction
that was erroneous in at least two respects. First, Reichert argues that the instruction
failed to properly reflect that a defendant is willfully blind only if he took “deliberate

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action” to avoid actual knowledge. See Global-Tech Appliances, Inc. v. SEB S.A., 131 S.
Ct. 2060, 2070 (2011). But Reichert is incorrect. The deliberate ignorance instruction
given in this case tracks the language of Sixth Circuit Pattern Criminal Jury Instruction
§ 2.09. The pattern instruction explicitly incorporates the requirement that a defendant
act “deliberately” to avoid full knowledge, and we have “repeatedly” held the instruction
to be an accurate statement of the law. United States v. Mitchell, 681 F.3d 867, 876 n.51
(6th Cir. 2012).
Second, Reichert asserts that the deliberate ignorance instruction incorrectly
implemented the pattern jury instruction and consequently eviscerated the DMCA’s
willfulness requirement by allowing the jury to convict him upon finding only that he
knew that he was trafficking in circumvention technology, rather than after finding that
he knew that he was violating the law by trafficking in such technology. Although a
district court’s refusal to give a jury instruction is reviewed for abuse of discretion, this
court reviews de novo a claim that a jury instruction inaccurately stated the law. United
States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011). As we have made plain, “no single
provision of the jury charge may be viewed in isolation; rather, the charge must be
considered as a whole.” United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007).
Reversal is warranted only “if the instructions, viewed as a whole, were confusing,
misleading and prejudicial.” United States v. Burchard, 580 F.3d 341, 345 (6th Cir.
2009). By contrast, where the instructions, “taken as a whole, fairly and adequately
submit[ ] the issues and applicable law to the jury,” our inquiry ends, as a defendant
cannot be improperly prejudiced by a jury instruction that is warranted by the evidence
and that accurately states the law. United States v. Zidell, 323 F.3d 412, 427 (6th Cir.
2003).
Despite Reichert’s assertions, we cannot agree with Reichert that the jury
instructions, viewed as a whole, improperly negated the DMCA’s willfulness
requirement. No court has yet discussed the reach of 17 U.S.C. § 1204(a)’s willfulness
requirement, and on this appeal we do not decide its scope. For this appeal, the parties
agree that it requires the government to prove that Reichert voluntarily and intentionally

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violated a known legal duty.1

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This is consistent with our typical approach, as

“[g]enerally . . . , in criminal cases, in order to establish a ‘willful’ violation of a statute,
the Government must prove that the defendant acted with knowledge that his conduct
was unlawful.” Roth, 628 F.3d at 834 (internal quotation marks omitted). It is also
ordinarily the case that a defendant need not be aware of the specific provision of law
that his conduct violates, as long as he is aware that his act is illegal. Id.; see Bryan v.
United States, 524 U.S. 184, 196 (1998) (willful violation of 18 U.S.C. § 924(a)(1)(D)
requires only “knowledge that the conduct is unlawful,” not knowledge of the specific
legal provisions prohibiting the defendant’s conduct); see also United States v. Cross,
816 F.2d 297, 300 (7th Cir. 1987). Reichert also concedes that the DMCA’s willfulness
requirement may be satisfied by a showing of willful blindness; that is, a defendant’s
conscious decision to remain ignorant of the illegality of his conduct even when the
defendant is aware of a high probability that his conduct is in fact illegal. See Mitchell,
681 F.3d at 876–77.
Reichert’s argument rests primarily on the first portion of the deliberate
ignorance instruction. It advised the jury, “If you are convinced that the Defendant
deliberately ignored a high probability that he was trafficking in technology primarily
designed to circumvent technological measures designed to effectively control access
to a work copyrighted under federal law, then you may find that he knew he was
violating the Digital Millennium Copyright Act.” Given that this language hinges the
requisite mens rea finding on Reichert’s knowledge that the technology in which he
trafficked was primarily purposed to facilitate illegal conduct, Reichert’s claim that it
eviscerated the DMCA’s willfulness requirement is tenuous. See Roth, 628 F.3d at
834–35 (indicating that awareness of broad criminal regulations obviously applicable to
defendant’s conduct may suffice for willfulness). Still, devoid of context, this part of the
instruction lends some support to Reichert’s position, as it seems to inform the jury that

1

The government does not argue in this case that the willfulness requirement is met by a
defendant’s knowledge that the technology trafficked in was primarily designed for purposes known to be
illegal.

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if Reichert deliberately ignored a high probability that he merely engaged in the conduct
at issue, then the jury could find that Reichert knew that his conduct violated the DMCA.
But Reichert’s focus is too myopic. Even to the extent that the challenged
portion of the instruction could have been more precise, it was not given in a vacuum.
Instead, it was sandwiched between two instructions that stated the stricter requirement
and clarified the challenged language. Immediately before giving the challenged
instruction, the district court gave an instruction on “willfulness,” explaining that an act
is willful if done “with the intent either to disobey or disregard the law,” that the
defendant “must have acted with the intent to do something the law forbids,” and that
the government must prove “that the law imposed a duty on the Defendant, that the
Defendant knew of this duty, and that he voluntarily and intentionally violated that
duty.” And immediately after giving the portion of the deliberate ignorance instruction
to which Reichert objects, the district court cautioned the jury that, to find that Reichert
knew that he was violating the DMCA, “you must be convinced beyond a reasonable
doubt that the Defendant was aware of a high probability that he was violating the
Digital Millennium Copyright Act, and that the Defendant deliberately closed his eyes
to what was obvious.”
In context, therefore, the language relied upon by Reichert did not detract from
the jury instructions’ overall import: when viewed “as a whole,” the jury instructions
given in this case properly instructed the jury on the issue of willfulness. Ross, 502 F.3d
at 527. Reichert has never objected to the district court’s willfulness instruction, and it
informed the jury that, for a defendant’s conduct to be willful, he “need not be aware of
the specific law or the rule his conduct is violating.” Even in Reichert’s formulation,
then, the jury was not required to find that Reichert knew that his conduct violated any
specific statute; all that was required to convict Reichert was a finding that he knew that
his conduct was illegal. Roth, 628 F.3d at 834–35. This is exactly what the district
court’s “willfulness” instruction told the jury, and the mildly imprecise deliberate
ignorance instruction did not fatally undermine it.

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Having been properly instructed, the jury found that Reichert constructively
knew that his conduct was against the law, given his admissions that he was operating
in a “gray” area of the law and was “technically” not supposed to be engaging in his
conduct. Reichert does not directly challenge the jury’s factual finding in this regard,
claiming that he is due a reversal based purely on instructional error. Because the jury
instructions accurately stated the law, however, Reichert’s position is without merit.2
B. Constitutional right to present a defense.
Reichert next claims that he was denied his constitutional right to present a
defense when the district court excluded Belcik’s testimony indicating that Reichert had
previously expressed a belief that modifying consoles was not illegal. “Whether rooted
directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory
Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants a meaningful opportunity to present a complete defense.” Holmes
v. South Carolina, 547 U.S. 319, 324 (2006) (quotation marks and citations omitted).
Reichert’s decision to frame his argument in constitutional terms is significant.
Where a defendant attacks an evidentiary ruling as violating the Sixth Amendment,
review of the legal aspects of the constitutional violation is de novo. United States v.
Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). But see United States v. Schreane, 331
F.3d 548, 564 (6th Cir. 2003) (“An appellate court reviews all evidentiary
rulings—including constitutional challenges to evidentiary rulings—under the
abuse-of-discretion standard.”). But, of course, a defendant “does not have an unfettered
right to offer evidence that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.” United States v. Blackwell, 459 F.3d 739, 753 (6th Cir.
2006) (internal alterations and quotation marks omitted). Instead, “the Constitution
permits judges to exclude evidence that is repetitive, only marginally relevant or poses
an undue risk of harassment, prejudice, or confusion of the issues.” Holmes, 547 U.S.
2

Because the pertinent willfulness and deliberate ignorance principles were “substantially covered
by the actual jury charge,” the district court did not abuse its discretion in declining to give Reichert’s
proposed instruction instead of the one actually used. United States v. Blanchard, 618 F.3d 562, 573 (6th
Cir. 2010) (internal quotation marks omitted).

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at 326–27 (internal alterations and quotation marks omitted); United States v. Humphrey,
608 F.3d 955, 962 n.3 (6th Cir. 2010). And even “erroneous evidentiary rulings rarely
constitute a violation of a defendant’s right to present a defense.” Hardy, 586 F.3d at
1044. In fact, the exclusion of defense evidence violates a defendant’s constitutional
right to present a defense only where it is “arbitrary” or “disproportionate”; that is,
where “important defense evidence” is excluded without serving “any legitimate
interests” or in a manner that is “disproportionate to the ends that [the rationale for
exclusion is] asserted to promote.” Holmes, 547 U.S. at 324, 325, 326 (internal
quotation marks omitted).
Because a defendant suffers a constitutional violation only if evidence in which
the defense has a “weighty interest” is impermissibly excluded, see Ferensic v. Birkett,
501 F.3d 469, 475–76 (6th Cir. 2007), the arbitrary or disproportionate exclusion of
defense evidence has constitutional significance only if the excluded evidence,
“evaluated in the context of the entire record[,] creates a reasonable doubt that did not
otherwise exist.” Blackwell, 459 F.3d at 753 (quotation marks and internal alteration
omitted).
We readily conclude that the exclusion of Belcik’s testimony did not cause
Reichert a constitutional injury. To be sure, the statements may have been admissible
under Federal Rule of Evidence 803(3) as a statement of Reichert’s then-existing state
of mind. However, the government correctly observes that Belcik admitted that he was
in the Navy between 2004 and 2008 and that he was “away” in 2007 at the time of
Reichert’s sale of the modified console and the search of his residence. Belcik never
indicated that Reichert’s statements about the legality of his conduct were made at any
time contemporaneous to 2007. Belcik’s proffered testimony, therefore, had only
marginal relevance to whether Reichert believed in 2007 that his conduct was legal.
And, of course, Reichert had at least one other avenue of putting his own statements and
beliefs into evidence: by taking the stand himself. As a result, Reichert’s constitutional
right to present a defense was not violated by the district court’s evidentiary ruling in
this respect.

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C. Special skills enhancement.
Finally, Reichert challenges the district court’s decision to enhance his sentence
pursuant to U.S.S.G. § 3B1.3. Section 3B1.3 provides for a two-point enhancement if
a defendant “abused a position of public or private trust, or used a special skill, in a
manner that significantly facilitated the commission or concealment of the offense.” Id.
While a district court’s factual findings underlying its application of the enhancement
are reviewed for clear error, see United States v. Wilson, 345 F.3d 447, 449 (6th Cir.
2003), “[t]he district court’s conclusion that skills possessed by a defendant are ‘special’
within the meaning of the Guideline . . . is a mixed finding of law and fact that this court
reviews de novo.” United States v. Godman, 223 F.3d 320, 322 (6th Cir. 2000); see
United States v. Tatum, 518 F.3d 369, 372 (6th Cir. 2008).
Reichert contends that his skills are not “special” within the meaning of § 3B1.3.
Emphasizing that he is a truck driver with only a high school diploma, Reichert points
to § 3B1.3, cmt. n.4, which explains, “‘Special skill’ refers to a skill not possessed by
members of the general public and usually requiring substantial education, training or
licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and
demolition experts.” Id. Claiming that he “learned how to modify game consoles
through trial and error, using how-to books and information from the internet,” Reichert
argues that his ability to modify game consoles is not reasonably comparable to the skills
listed in Application Note 4.
We cannot agree. In Godman, we observed that requisitely “special” skills may
be acquired “through months (or years) of training, or the equivalent in self-tutelage.”
Godman, 223 F.3d at 323 (emphasis added). Nevertheless, we underscored that, to
qualify for the enhancement, a defendant’s self-taught skills must be “particularly
sophisticated.” Id. In this respect, emphasis is best placed “on the difficulty with which
a particular skill is acquired.” Id. at 322. In Godman, for instance, we observed that the
defendant’s familiarity with a computer scanner and experience in desktop
publishing—which the defendant used to manufacture “fairly good quality” counterfeit
bills, id.—could be replicated in fairly short order by “[m]ost persons of average ability”

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with “a minimum of difficulty.” Id. at 323. We therefore concluded that the defendant’s
skills were not similar to those listed in Application Note 4 and were thus not special for
purposes of the enhancement. Id.
Reichert’s skills, by contrast, are much more sophisticated than those at issue in
Godman. Building on skills learned in a high school vocational program that taught him
how to build his own computer systems from components, Reichert continued to modify
consoles for almost half of a decade. As one of the prosecution’s expert witnesses
testified at trial, modification of a game system can be a “pretty complicated process,”
requiring both familiarity with consoles’ specialized circuitry and the technical deftness
to install the modification chip without damaging the delicate circuit board. Over time,
Reichert became exceptionally skilled at making these modifications, eventually serving
as a moderator of a specialized internet discussion forum that was largely dedicated to
console modification. In fact, Reichert was lauded within the gaming community as one
of a very few individuals who knew a work-around for one of the most complicated
modifications, and his expert assistance was actively sought out and paid for by gamers
who had attempted to modify consoles on their own but were unable to do so or who
were trying to prevent console manufacturers from detecting that their consoles had been
modified. At one point, Reichert even cautioned that certain types of modifications were
“not for . . . normal people” because a modifier could “[s]crew stuff up” if he was “not
careful.”
This evidence suggests what we did not find in Godman: that Reichert’s
specialized abilities could not be duplicated by “[m]ost persons of average ability” with
“a minimum of difficulty.” Godman, 233 F.3d at 323. Although we agree with Reichert
that his skills were not as sophisticated as those at issue in United States v. Petersen,
98 F.3d 502, 504–07 (9th Cir. 1996), where the defendant’s self-taught computer skills
enabled him to hack into the secure computer systems of major financial institutions, the
record here demonstrates that Reichert’s skill with computer hardware and specialized
game console components was substantially more difficult to acquire than the mere
familiarity with desktop publishing that was present in Godman. See United States v.

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Berry, 717 F.3d 823, 835 (10th Cir. 2013) (ability to drive an eighteen-wheeler truck was
sufficiently “special” where the driver possessed almost five years of truck-driving
experience in addition to the basic “small potatoes” training initially required). The
district court’s findings with respect to Reichert’s self-training, ability, and
sophistication support the determination that his console-modification skills are
“special.” Accordingly, the district court did not err in applying § 3B1.3’s special skills
enhancement to Reichert.
III.
Having discerned no reversible error, we affirm Reichert’s conviction and
sentence.

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__________________
DISSENT
__________________
BERNICE BOUIE DONALD, Circuit Judge, dissenting. This appeal concerns
the criminal enforcement of the Digital Millennium Copyright Act (“DMCA”). A
violation of the DMCA may rise to the level of a criminal offense if it is committed
“willfully” and for “commercial advantage or private financial gain.” 17 U.S.C.
§ 1204(a).
As the majority explains, Jeffrey Reichert operated a small business of sorts,
providing modification services for video game consoles. He did so openly and
advertised his services on the Internet. For a fee of approximately $50, Reichert would
install a “mod chip” into a video game console that could enhance its functionality in a
number of legitimate ways, but that also enabled the console to play unauthorized pirated
copies of video games. In 2007, Reichert sold one of these modified consoles—a
Nintendo Wii—to an undercover agent of the U.S. Immigration and Customs
Enforcement’s (“ICE”) anti-piracy enforcement group during an investigation known as
Operation Tangled Web. As a result, Reichert was charged under the DMCA’s criminal
provision, § 1204(a), for trafficking in “service[s], device[s] . . . or part[s] thereof”
designed to circumvent technological protection measures that prevent copyright
infringement, in violation of the DMCA’s anti-circumvention provision. 17 U.S.C.
§§ 1201(a)(2)(A).
To establish that Reichert “willfully” violated the DMCA, as is required for
criminal liability to attach under § 1204(a), the Government had to prove that Reichert
acted “with knowledge that his conduct was unlawful.” United States v. Roth, 628 F.3d
827, 834 (6th Cir. 2011) (quoting Bryan v. United States, 524 U.S. 184, 191 (1998))
(internal quotation marks omitted). Reichert claims that he could not have “willfully”
violated the DMCA, because he was unaware that installing mod chips into video game
consoles was against the law.

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On appeal, Reichert argues, inter alia, that the jury instruction provided at trial
misstated the DMCA’s willfulness requirement and thus precluded the jury from
properly considering his defense. The majority concedes that the district court misstated
the law in its jury instruction, but concludes that the error was harmless.
If the statute of conviction in this case were itself less ambiguous, I might be
more inclined to agree with the majority. Here, however, an otherwise excusable fault
in the jury instruction compounded the already heightened risk for error in a case where
the charging statute was arguably subject to various interpretations as to the exact legal
status of the defendant’s conduct. Under these circumstances, I cannot agree with the
majority that the additional confusion resulting from the instruction was harmless.
Therefore, I respectfully dissent from Part II of the majority opinion.
I.
This case requires a sophisticated understanding of the technologies at issue and
their legal status under the DMCA.
A. Technological Protection Measures and Technological Circumvention
The term “technological protection measure” (“TPM”) refers to a wide variety
of technologies that are used to control or restrict access to digital content or electronic
devices. TPMs “range from the basic to the sophisticated” and include “password
protection, copy protection, encryption, digital watermarking and, increasingly, rights
management systems incorporating one or more of the foregoing.” June M. Besek, AntiCircumvention Laws and Copyright: A Report from the Kernochan Center for Law,
Media and the Arts, 27 Columb. J.L. & Arts 385, 391-392 (2004) [hereinafter
Kernochan Study] (internal quotation marks omitted).
Technology manufacturers use TPMs to limit the functionality of a device or
program to a particular use, to implement security measures, to strengthen privacy
controls, and of course, to protect intellectual property by preventing unauthorized
duplication and/or access. Id. at 446-466. Today, the vast majority of commercially

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available software and hardware devices are embedded with TPMs designed to achieve
the manufacturer’s interests in maintaining control of the technology after it has been
purchased by a consumer. Id. at 446-466. TPMs are useful and often necessary tools
for businesses that operate in the digital realm. This is particularly true in the context of
intellectual property, where TPMs can provide varying degrees of protection against the
general ease with which the Internet and digital technology “have made it possible to
reproduce copyrighted works and disseminate them around the world with ever greater
speed and efficiency.” Id. at 391.
On the other hand, overly restrictive or impractical TPMs can also interfere with
a consumer’s ability to use technology in legitimate, but perhaps unintended or
unforeseen ways. See id. at 393-394; see also Universal City Studios, Inc. v. Reimerdes,
111 F. Supp. 2d 294, 322 n.159 (S.D.N.Y. 2000), aff'd sub nom. Universal City Studios,
Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). As a result, various circumvention
technologies designed to bypass TPMs have proliferated to meet the consumer demand
for interoperability and unrestricted access to various technologies. Id. at 392 (“TPMs
can be broken quickly by the technologically able; these individuals can then create and
distribute tools to those with less technological sophistication, allowing them to
circumvent protection measures.”).
Generally speaking, circumvention technology is computer code that overrides
or bypasses a TPM and can be accessed by downloading a program, running an
application, or, as in this case, inserting a computer chip embedded with such a code into
a hardware device. The DMCA describes circumvention technology as any mechanism
that “descramble[s]” or “decrypt[s]” or otherwise “avoid[s], bypass[es], remove[s],
deactivate[s], or impair[s]” a technological protection measure.

17 U.S.C.

§ 1201(a)(3)(A).
Although circumvention technologies can serve a number of legitimate, noninfringing purposes, some can also be used to access or reproduce copyrighted works
without authorization. The DMCA was designed in part to remedy this problem.

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B. The DMCA’s “Anti-Circumvention” Provision, 17 U.S.C. § 1201(a)(2)
Congress enacted the DMCA to address “the ease with which pirates could [use
web-based services to] copy and distribute . . . copyrightable work[s] in digital form.”
Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 458 (2007) (quoting Universal City
Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001)) (internal quotation marks
omitted). Specifically, the DMCA’s anti-circumvention provision was designed to
support “the efforts of copyright owners to protect their works from piracy behind digital
walls such as encryption codes or password protections” by banning the use,
manufacture, or sale of technologies that circumvent digital copyright controls. Id.
The DMCA’s anti-circumvention provision prohibits the act of circumvention
itself, 17 U.S.C. § 1201(a)(1), and also targets the availability of circumvention
technologies by making it unlawful to traffic in technologies designed to circumvent
TPMs that control access to copyrighted works, § 1201(a)(2).
In order to prevent the DMCA from adversely affecting otherwise lawful uses
of circumvention technologies, Congress built several exceptions into the anticircumvention provision. See 17 U.S.C. § 1201(d)-(j). Congress also charged the
Librarian of Congress, in conjunction with the U.S. Copyright Office and the National
Telecommunications and Information Administration (“NTIA”) of the U.S. Department
of Commerce, with the task of creating additional regulatory exemptions in the future,
to ensure that the anti-circumvention provision would continue serving its intended
purpose in a rapidly evolving technology industry. As directed in § 1201(a)(1)(C), the
Librarian of Congress carves out exceptions to § 1201 in rulemaking proceedings every
three years. See Bill D. Herman, Oscar H. Gandy, Jr., Catch 1201: A Legislative History
and Content Analysis of the DMCA Exemption Proceedings, 24 Cardozo Arts & Ent. L.J.
121, 128 (2006) (providing a comprehensive overview of the rulemaking process).
The legislative history of the DMCA makes clear that the anti-circumvention
provision is not intended to function as a comprehensive ban on all circumvention
technologies; rather, its purpose is to prevent those technologies from being used as a
tool for copyright infringement and to provide remedies for copyright holders against

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individuals and entities who facilitate the widespread unauthorized reproduction of
copyrighted works by making such technologies available to the public. See Kernochan
Study, 404-406 (providing a detailed legislative history of the DMCA’s anticircumvention provision); Lexmark Int’l, Inc. v. Static Control Components, Inc.,
387 F.3d 522, 551-52 (6th Cir. 2004) (“Such a reading would ignore the precise
language—‘for the purpose of’—as well as the main point of the DMCA—to prohibit
the pirating of copyright-protected works such as movies, music, and computer
programs.”), aff'd on other grounds, 572 U.S. ___ (2014).
Accordingly, several courts, including ours, have held that circumvention
technologies designed primarily for purposes other than to bypass copyright restrictions
are not within the ambit of the DMCA’s anti-circumvention provision. See Lexmark,
387 F.3d 522 (holding that a modification chip designed to make third party ink
cartridges compatible with Lexmark printers was not primarily designed to circumvent
copyright and thus did not violate the DMCA); Chamberlain Group, Inc. v. Skylink
Techs., Inc., 381 F.3d 1178, 1203-1204 (Fed.Cir.2004) (stating that circumvention alone
does not establish a violation of the DMCA unless it can also be demonstrated that there
is a nexus between the use of a particular circumvention technology and actual copyright
infringement); see also Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting,
Inc., 421 F.3d 1307, 1318 (Fed. Cir. 2005) (“[C]ourts generally have found a violation
of the DMCA only when the alleged access was intertwined with a right protected by the
Copyright Act.”) (citing Universal City Studios v. Corley, 273 F.3d 429, 435 (2d
Cir.2001); RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311, at *7 (W.D.Wash.
Jan.18, 2000)).
The Ninth Circuit, however, disagrees and construes the DMCA’s anticircumvention more broadly. See MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d
928, 948 (9th Cir. 2010) (rejecting the “infringement nexus” requirement). As the Ninth
Circuit’s recent opinion demonstrates, competing interpretations of the anticircumvention provision give § 1201 the potential to function as a broader prohibition
against circumvention technologies with only an incidental relation to copyrighted

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works. Id. Indeed, the circuit split is representative of an ongoing debate over the
statutory construction and scope of the DMCA’s anti-circumvention provision among
scholars and other commentators who question whether certain applications of § 1201
have undermined the delicate balance that Congress sought to achieve between
strengthening copyright law and preserving consumer rights, promoting technological
innovation, and protecting First Amendment speech in our increasingly digitized culture.
See Kernochan Study, at 411-15 (compiling sources).
C. Legal Status of “Mod Chips” and Video Game Console Modifications
A modification chip, or “mod chip,” is a computer chip with software that—once
installed into a video game system’s motherboard—can enhance its capabilities or add
to its functionality. Like other circumvention technologies, mod chips can serve both
lawful and unlawful purposes. Although some modifications are designed to “allow
users to play unauthorized and illegal copies” of video games, Sony Computer Entm’t
Am., Inc. v. Filipiak, 406 F. Supp. 2d 1068, 1070 (N. D. Cal. 2005) (“A counterfeit,
unlicensed ‘burnt’ game disc will not play in an unmodified PlayStation console . . . but
if a mod chip is installed in a PlayStation console, the counterfeit, unlicensed ‘burnt’
game disc will play.”); many legitimate, non-infringing, uses exist for mod chips that do
not involve or facilitate copyright infringement.1
The fact that modified video game consoles can be used for both legitimate, noninfringing purposes as well as to facilitate copyright infringement makes it all the more
difficult to determine the precise legal status of mod chips. In a vacuum, the plain
1

For example, a common complaint about the Nintendo Wii is that, unlike other popular video
game consoles, such as the Sony Playstation and Microsoft Xbox, the Wii cannot play ordinary DVDs.
The demand for a solution to this perceived deficiency is one of several reasons why a consumer might
purchase a mod chip or seek to have one installed into a video game console.
Mod chips can also be used to remedy failures and solve problems in video game consoles, or to
run back-up copies of legally purchased video games to replace damaged or lost originals. See 321 Studios
v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1097 (N.D.Cal. 2004) (finding that copyright
law does not prohibit consumers from creating duplicate “back-up” copies of legally purchased video
games).
In addition, mod chips enable video game enthusiasts and more sophisticated gamers to create
and play “homebrew” video games developed by independent amateur game creators and hobbyists. See
Lewis Stevenson, Fair Circumvention: A Judicial Analysis for the Digital Millennium Copyright Act Using
the Playstation 3 As A Case Study, 21 S. Cal. Interdisc. L.J. 681, 682 n.7 (2012) (“Homebrew is a term for
software applications created by consumers rather than licensed developers.”) (citing Mike Musgrove,
Routine Upgrades are the Bane of ‘Homebrew’ Enthusiasts, Wash. Post, July 6, 2006, at D04).

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language of § 1201(a), certainly lends itself to a reading under which mod chips would
be considered unlawful. See 17 U.S.C. § 1201(a)(2)(A). When read in conjunction with
the provision’s statutory exceptions and subsequent exemptions added through
regulatory rulemaking, however, the actual legal status of mod chips and video game
console modifications is not entirely clear.
Perhaps the most important of these exceptions is the “reverse engineering”
provision, which permits circumvention of TPMs through reverse engineering for the
purpose of “achiev[ing] interoperability of an independently created computer program
with other programs,” that are not otherwise readily available. 17 U.S.C. § 1201(f); see
Lexmark, 387 F.3d at 549 (“[T]he interoperability provision [was designed to] ensure
that the DMCA would not diminish the benefit to consumers of interoperable devices in
the consumer electronics environment.”). Because video games are essentially computer
programs, the reverse engineering exception has often been relied upon for the
proposition that video game modifications are not per se unlawful under the anticircumvention provision.2 Indeed, in the very first rulemaking proceeding to consider
exemptions to the DMCA’s anti-circumvention provision, the Librarian of Congress
considered, but ultimately declined to create an exemption for mod chips designed
achieve the interoperability of video games across multiple platforms, based on its
reasoning that § 1201(f) was sufficient to safeguard legitimate users of mod chips and
modified consoles from adverse action. See Exemption to Prohibition on Circumvention
of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556,
64570 (Oct. 27, 2000) (codified at 37 C.F.R. 201).

2

See Vijay G. Brijbasi, Game Console Modification Chips: The Effect of Fair Use and the Digital
Millennium Copyright Act on the Circumvention of Game Console Security Measures, 28 Nova L. Rev.
411, 436 (2004). Under the reverse engineering exception at § 1201(f), a console modification designed
“primarily” for the purpose of enhancing a console’s “interoperability,” such as accessing legitimately
purchased video games across multiple platforms, or to enable the playing of independently designed noninfringing “homebrew” video games would appear to be lawful under the DMCA. See Stevenson, supra
n. 1; Phillip A. Harris Jr., Mod Chips and Homebrew: A Recipe for Their Continued Use in the Wake of
Sony v. Divineo, 9 N.C. J. L. & Tech. 113, 115-118 (2007). Similarly, installing a mod chip into a console
like the Wii for the purpose of enhancing its functionality, so that it can play ordinary and lawfully
purchased DVDs, would also seem to fall under the reverse engineering exception at § 1201(f), so long
as such a modification was not designed “primarily . . . for the purpose of” playing illegal, pirated video
games. See 17 U.S.C. §§ 1201(a)(2)(A), 1201(f).

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In 2003, however, the Librarian of Congress reversed course and carved out
several exemptions for circumvention technologies which had previously been thought
to fall within the statutory exception for reverse engineering at § 1201(f). See generally,
68 Fed. Reg. 62011 (Oct. 31, 2003).

One of those exemptions permitted the

circumvention of TPMs on video games and video game consoles for the purpose of
accessing “video games distributed in formats that have become obsolete and which
require original media or hardware as a condition of access.” 68 Fed. Reg. 62011 (Oct.
31, 2003). Although the intent of the 2003 rulemaking was to clarify the DMCA’s
application to mod chips and other circumvention technologies, the addition of this new
regulatory exemption, which covered a particular use for mod chips that had previously
been thought to fall under an existing statutory exception, seems to have caused even
greater uncertainty. See generally Joe Linhoff, Video Games and Reverse Engineering:
Before and After the Digital Millennium Copyright Act, 3 J. on Telecomm. & High Tech.
L. 209, 229 (2004). Subsequent rulemakings renewed this exemption and introduced
several others, but did little to clarify the legal status of mod chips and other
circumvention technologies under the DMCA. 71 Fed. Reg. 68472, 68476 (Nov. 27,
2006).3
II.
Having established a basic understanding of the DMCA’s anti-circumvention
provision and the technologies it governs, it is now possible to delve into the more
specific argument raised by Reichert’s appeal. Reichert argues that the jury instruction
provided at trial misstated applicable law and so confused the jury on the willfulness
element of the DMCA’s criminal provision that the jury was precluded from properly
considering his defense. Because I find that the jury instruction fundamentally undercut
his defense, which in turn, was particularly susceptible to confusion due to conflicting
interpretations of the DMCA, I dissent from the majority’s opinion.

3

Meanwhile, at the time of this writing, there are two bills currently pending before Congress that
would override much of the framework established through the DMCA’s regulatory rulemaking process
since its passage. See The Unlocking Technology Act of 2013, H.R. 1892, 113th Cong. (2013); The
Unlocking Consumer Choice and Wireless Competition Act, H.R. 1123, 113th Cong. (2014).

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A. The Jury Instruction
This Court reviews de novo a claim that the jury instruction inaccurately stated
the law. United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011) (citing United States
v. Blanchard, 618 F.3d 562, 571 (6th Cir. 2010); H.C. Smith Invs., L.L.C. v. Outboard
Marine Co., 377 F.3d 645, 650 (6th Cir.2004)). When reviewing jury instructions, we
look to the instruction as a whole to determine whether “they adequately informed the
jury of the relevant considerations and provided a basis in law for aiding the jury in
reaching its decision.” United States v. Burchard, 580 F.3d 341, 345 (6th Cir. 2009); see
also United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007) (“No single provision of
the jury charge may be viewed in isolation; rather, the charge must be considered as a
whole.”).

A judgment stemming from a jury verdict should be reversed if the

instruction, viewed as a whole, was prejudicial, or if the instructions confused or misled
the jury about the correct application of the law. Roth, 628 F.3d at 833; see also
Burchard, 580 F.3d at 345 (citing United States v. Robinson, 547 F.3d 632, 637 (6th Cir.
2008)).
A violation of § 1201 is only a criminal offense under § 1204(a) if it is
committed “willfully” and for commercial or private financial gain.

The term

“willfully,” when used in a criminal statute, generally refers to conduct that involves “a
bad purpose,” or “careless disregard [for] whether a person has the right so to act.”
Bryan v. United States, 524 U.S. 184, 191 n.12, 13 (1998); the term marks a distinction
between deliberate criminal conduct and unwitting or oblivious conduct which does not
indicate a culpable state of mind. Id. at 191.
In order to establish a willful violation of a statute, “the Government must prove
that the defendant acted with knowledge that his conduct was unlawful.” Id. at 192
(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)); accord Dixon v. United
States, 548 U.S. 1, 5 (2006) (“[T]he term willfully . . . requires a defendant to have acted
with knowledge that his conduct was unlawful.”); United States v. Roth, 628 F.3d 827,
834 (6th Cir. 2011) (“[I]n criminal cases, in order to establish a willful violation of a
statute, the Government must prove that the defendant acted with knowledge that his

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conduct was unlawful.”). Therefore, at trial, the Government was required to prove that
Reichert knew that it was unlawful for him to sell modified video game consoles.
The district court should have instructed the jury to deliver a guilty verdict if it
was convinced that Reichert:
[D]eliberately ignored a high probability that he was breaking the law
designed to effectively control access to a work copyrighted under
federal law . . .
Instead, the district court instructed the jury to deliver a guilty verdict if Reichert:
[D]eliberately ignored a high probability that he was trafficking in
technology primarily designed to circumvent technological measures
designed to effectively control access to a work copyrighted under
federal law . . .
It is undisputed that, standing alone, this portion of the jury instruction did not properly
reflect the DMCA’s mandate that, in order for criminal liability to attach, the
Government had to prove that Reichert knew his conduct to be unlawful. 17 U.S.C.
§ 1204(a); Roth, 628 F.3d at 834 (“[I]n order to establish a ‘willful’ violation of a statute,
the Government must prove that the defendant acted with knowledge that his conduct
was unlawful.”). Moreover, the district court’s error was not a minor misstatement of
law—it directly undermined Reichert’s only defense at trial.
The only remaining question is whether other portions of the instruction, when
combined with the district court’s misstatement of law and viewed in its entirety,
salvaged the jury instruction such that Reichert was not deprived of a fair trial. In my
view, it did not. Accordingly, the judgment should be reversed because the instruction,
viewed as a whole, permitted the jury to deliver a guilty verdict upon a lesser finding
than the statute’s willfulness requirement. See 17 U.S.C. § 1204.
The majority concludes that the misstated part of the instruction was harmless
because it was accompanied by and “sandwiched between” two proper statements of
law, but the fact that other portions of the jury instruction provided a more accurate
statement of law did nothing to restore the incorrectly stated part of the instruction. If

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the district court had acknowledged its mistake and explicitly corrected itself, then
perhaps it could be said that the jury instruction, viewed as a whole, was proper. Here,
however, there is simply no way of knowing whether the jurors relied on the district
court’s incorrect misstatement of law or its accompanying, yet contradictory, correct
statements of the law. Although other parts of the instruction may have provided the
necessary clarity for some jurors to understand what the district court meant, there was
no indication that the court was correcting its earlier statement or that the jury should
apply the correct statement of the law instead of relying on the district court’s incorrect
statement. While it is certainly possible that the jury relied on the correct portion of the
instruction, the likelihood that it relied on the incorrect portion seems equally probable.
Since we simply cannot know, to conclude otherwise would require impermissible
speculation. See Davis v. Georgia, 451 U.S. 921, 922 (1981) (explaining that reversal
is necessary when “[a]n appellate court can do no more than guess at what a jury might
have done . . . [if] properly instructed”).
I would be more inclined to agree with the majority if the DMCA’s anticircumvention provision were itself less ambiguous. In this case, however, the charging
statute was arguably open to various interpretations. Under these circumstances, I
cannot agree with the majority that the additional confusion generated by a jury
instruction that muddled the mens rea element of the charge was harmless. See United
States v. Salisbury, 983 F.2d 1369, 1377 (6th Cir. 1993).
The emphasis upon mens rea in the vast majority of criminal statutes is “in
keeping with our longstanding recognition of the principle that ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity.” Liparota v. United
States, 471 U.S. 419, 427-28 (1985) (citing Rewis v. United States, 401 U.S. 808, 812
(1971); United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978); United States v.
Bass, 404 U.S. 336, 347–34, (1971); Bell v. United States, 349 U.S. 81, 83 (1955);
United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222 (1952)). The rule
of lenity, in turn, “ensures that criminal statutes will provide fair warning concerning
conduct rendered illegal and strikes the appropriate balance between the legislature, the

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prosecutor, and the court in defining criminal liability.” Liporta, at 427-28 (citing Bass,
404 U.S. at 348). Where “congressional purpose is unclear,” the rule of lenity “provides
a time-honored interpretive guideline” that criminal culpability does not attach unless
it has been clearly established. See Liparota, at 418.
In cases such as this one, where the charging statute is subject to various
interpretations, the relationship between adequacy of notice and a statute’s scienter
requirement may, under certain circumstances, resolve potential ambiguities. See Vill.
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (finding
that “a scienter requirement may mitigate a law's vagueness, especially with respect to
the adequacy of notice to the complainant that his conduct is proscribed”). Therefore,
latent ambiguities in the DMCA’s anti-circumvention provision could have been less of
a concern in this case if the jury instruction had properly ensured that the Government
met its obligation to prove the willfulness element of Reichert’s alleged crime. Here,
however, the opposite is true—the jury instructions convoluted the scienter element of
the charge and aggravated the already heightened risk of error stemming from a statute
that was itself subject to various interpretations concerning the exact legal status of the
defendant’s conduct.
Finally, although the issue on appeal is neither the weight nor sufficiency of the
evidence, I mention it here because it leads to the conclusion that an error must have
been present for the jury to deliver a guilty verdict despite overwhelming the evidence
in support of Reichert’s defense. If the evidence at trial had done more to establish the
Government’s contention that Reichert knew he was breaking the law, then I might be
more inclined to agree with the majority.

Here, however, Reichert put forth

overwhelming evidence to establish his defense. It is undisputed that Reichert operated
his console modification business openly; he advertised his services and even opened a
separate bank account for the business because he planned to file tax returns on the
income it generated. Moreover, at trial, an agent who had engaged in online
conversations with Reichert during the investigation testified that Reichert seemed to
believe that video game modifications and mod chips occupied a legal “gray area.”

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Given the ongoing debate over the scope of the DMCA’s anti-circumvention provision,
Reichert’s point of view was not unsupported. See e.g., Chamberlain, 381 F.3d at 12031204; Lexmark, 387 F.3d at 547-48; cf. MDY Indus., 629 F.3d at 948. In fact, several
law review articles published around the time of Reichert’s arrest suggest that his
understanding of mod chips’ legal status was no different from the views expressed by
individuals who had a much more sophisticated understanding of the law. See, e.g.,
Vijay G. Brijbasi, Game Console Modification Chips: The Effect of Fair Use and the
Digital Millennium Copyright Act on the Circumvention of Game Console Security
Measures, 28 Nova L. Rev. 411, 426 (2004); Phillip A. Harris Jr., Mod Chips and
Homebrew: A Recipe for Their Continued Use in the Wake of Sony v. Divineo, 9 N.C.
J. L. & Tech. 113, 115-118 (2007); Zvi Rosen, Mod, Man, and Law: A Reexamination
of the Law of Computer Game Modifications, 4 Chi.-Kent J. Intell. Prop. 196 (2005);
Lewis Stevenson, Fair Circumvention: A Judicial Analysis for the Digital Millennium
Copyright Act Using the Playstation 3 as a Case Study, 21 S. Cal. Interdisc. L.J. 681
(2012). Nevertheless, the jury delivered a guilty verdict.
If the jury had received a proper instruction on the law, which imposed the
highest possible burden upon the Government to demonstrate that Reichert “willfully”
violated the DMCA, it seems highly improbable that it would have convicted Reichert
on the evidence presented at trial.
III.
For the foregoing reasons, I respectfully dissent from Part II of the majority
opinion. While I agree with the majority as to the other issues presented by this appeal,
I would reverse on the basis of the erroneous jury instruction.