As a Circuit judge recently noted in dissent, the Digital Millennium Copyright Act (DMCA) strives to "achieve a balance between strengthening copyright law and preserving consumer rights, promoting technological innovation, and protecting First Amendment speech in our increasingly digitized culture." Some of the provisions in the DMCA that specifically pertain to "strengthening copyright law" are known as the "anti-circumvention" rules. These rules impose liability upon those who either (1) circumvented technological controls designed to prevent copyright as a means of committing copyright infringement, or (2) circumvented technological controls as a means of facilitating copyright infringement by another. See U.S.C. § 1201(a)(1), 1201(a)(2). A willful accomplishment of either of these methods of circumvention is a criminal offense. See 17 U.S.C. § 1204(a).

The dissenting opinion quoted above comes from United States v. Reichert, --- F.3d ----, 2014 WL 1259610 (6th Cir. 2014), a case in which the Sixth Circuit confronted the question of whether the language in a jury instruction misrepresented the mens rea required to sustain a criminal conviction under the anti-circumvention provisions. The defendant Jeffrey Reichert (Reichert) ran a business in which he installed modification chips in video game consoles (consoles) to allow users to run software on the consoles for which they were not originally designed. Upon modification, the video game console could be utilized to play both legitimate video games and pirated ones. Thereafter, Leichert was charged with trafficking in technology "primarily designed or produced … for the purpose of circumventing a technological measure that effectively controls access to a work protected by copyright."

Leichert was subsequently convicted of this offense in a jury trial. On appeal, he objected in part on the grounds that the jury instruction stating that he could be convicted if he "deliberately ignored a high probability that he was trafficking in technology primarily designed" for circumvention misconstrued the mens rea requirement for a criminal conviction under the DMCA. Specifically, Leichert argued that this jury instruction allowed the jury to convict him upon finding he knew he was trafficking in circumvention technology, rather than upon a finding that he knew he was violating a law by trafficking in such technology. Though it conceded that "devoid of context, this part of the instruction lends some support for Reichert's provision," the court rejected Reichert's argument. First, it cited to a case that indicates that "awareness of broad criminal regulations obviously applicable to defendant's conduct may suffice for willfulness." See U.S. v. Roth, 628 F.3d 827 (6th Cir. 2011). Next, it noted that the "deliberate ignorance" instruction was sandwiched between two other jury instructions that unequivocally instructed the jury that it could only convict Reichert of willfully violating the DMCA by a showing that "the [DMCA] imposed a duty on the Defendant, that the Defendant knew of this duty, and that he voluntarily and intentionally violated that duty." A separate jury instruction reiterated that Reichert could be convicted only if he was aware "of a high probability that he was violating the [DMCA] … and deliberately closed his eyes to what was obvious." Therefore, since Reichert had admitted he was operating in a "gray" area of the law and was "technically" not supposed to be implanting the modification chips, coupled with the general maxim that a single jury instruction should be examined on the whole, the court found the "deliberate ignorance" was insufficient to overturn the conviction for willfully trafficking in circumvention technology.

This holding prompted a strenuous dissent, largely premised on the notion that the charging statute has been subject to "various interpretations as to the exact legal status of the defendant's conduct." The dissent then catalogued how circuits heretofore had come to differing conclusions as to whether circumvention technologies designed primarily for purposes other than to bypass copyright restrictions were within the purview of the DMCA anti-circumvention provisions. In the Sixth Circuit, previous precedent held that these technologies were not violative of the anti-circumvention provisions. See Lexmark Intern., Inc. v. Static Control Components, 387 F.3d 522 (6th Cir. 2004). According to the dissent, this precedent was particularly pertinent to the instant case since modification chips serve both lawful, e.g., non-infringing, and unlawful purposes. As applied to the anti-circumvention provisions and its exceptions, the dissent noted that the Librarian of Congress had inserted a regulatory exemption in 2003 to the DMCA which permitted a use of modification chips for reverse engineering. This existence of this exemption prompted arguments that a modification of video games via reverse engineering was not per se unlawful under the anti-circumvention provisions.

Given this background, the dissent argued that the jury instruction qua "deliberate ignorance" was insufficient to convey to the jury the willfulness requirement. Put another way, since certain reverse engineering type modifications of video game may not be a violation of the anti-circumvention provisions, Reichert may not have known that he was violating the DMCA when he engaged in the modifications. Additionally, the dissent rejected the "totality of the circumstances of the jury instructions" argument from the majority by noting that, although it was possible the conviction arose from the jury instructions explicitly specifying that willfulness of a violation of the law was a necessary condition to convict, it could have also arisen from the misstated deliberate ignorance instruction that did not unequivocally specify that Reichert must have known that he was violating the law, and not merely that he was trafficking in technology primarily designed to circumvent technological measures.