IP Law Daily, COPYRIGHT—6th Circuit: DMCA conviction affirmed; admission regarding design of “mod” chips foreclosed void-for-vagueness challenge to DMCA trafficking provision, (Apr 8, 2014)

By Mark Engstrom, J.D.

The criminal conviction of an individual who sold modification chips and swap discs in violation of the Digital Millennium Copyright Act (DMCA) was affirmed by the U.S. Court of Appeals in Cincinnati (Unites States v. Silvius, April 7, 2014, Hood, J.). The individual’s void-for-vagueness challenge to the constitutionality of the DMCA’s trafficking provision was rejected by the appellate court because the individual had admitted in his plea agreement that he had offered for public sale “illegal modification chips and swap discs” that were “designed to circumvent the copyright protection features” that manufacturers of video game consoles had created to prevent the playback of pirated and counterfeit video games.

Background. After a federal district court denied a motion to dismiss the indictment of William B. Silvius under the trafficking provision of the DMCA, Silvius pleaded guilty to violating 17 U.S.C. §1201(a)(2)(A), which prohibited the trafficking of tools that circumvented technological measures that controlled access to protected works. Because Silvius entered a conditional guilty plea, he preserved his right to appeal the constitutionality of §1201(a)(2)(A). According to Silvius, the trafficking provision was unconstitutionally vague because a reasonable person “would not have adequate notice of the conduct that [wa]s prohibited under the DMCA.” In this case, that conduct was the selling of un-flashed modification chips (“mod” chips) and swap discs.

Silvius conceded, as the factual basis for his guilty plea, that he had used an Internet website to publicly offer “the sale of illegal modification chips and swap discs, which were designed to circumvent the copyright protection features designed into Sony Playstation 2, Microsoft Xbox, and Nintendo Wii video game consoles … to prevent the playback of pirated and/or counterfeit video games” (emphasis added by the court).

The district court sentenced Silvius to two years of probation and ordered him to pay a $2,500 fine and a $100 special assessment. The court also ordered Silvius to complete 100 hours of community service. Silvius appealed.

Void-for-vagueness argument. On appeal, Silvius argued that he was denied his due process rights under the Fourteenth Amendment because §1201(a)(2)(A) was, with respect to the sale of modification chips and swap discs, void for vagueness. More specifically, Silvius argued that §1201(a)(2)(A) failed to make it sufficiently clear that the prohibition against trafficking “control access circumvention tools” was applicable to his sale of modification chips or swap disks. Silvius complained that: (1) modification chips and swap disks were not named in the statute and (2) those chips and disks had legitimate uses that would permit their fair use by a consumer, either under 17 U.S.C. §107 or under the exemptions that were identified in §1201 (d)-(k).

According to the court, Silvius: (1) admitted that he had offered to sell modification chips and swap discs that were, in the words of the plea agreement, “designed to circumvent the copyright protection features” of video game consoles and (2) conceded that the statute clearly applied to his conduct, notwithstanding his arguments on appeal.

Silvius’s argument that an unflashed modification chip for a video game console did not have the ability, on its own, to circumvent a technological measure was “irrelevant” in light of his own admission that the modification chips and swap discs that he had offered for sale were “primarily designed to circumvent technological measures” that were designed to effectively control access to a copyrighted work, including the copyright protection features that were designed into Sony’s Playstation 2, Microsoft’s Xbox, and Nintendo’s Wii consoles.

Ultimately, Silvius could not challenge the sufficiency of the evidence that justified the district court’s judgment of guilt (under Rule 11(b)(3) of the Federal Rules of Criminal Procedure) because Silvius had accepted the facts that were set out in his plea.

Finally, Silvius offered no support for his assertion that his prosecution was illegitimate because he had been “arbitrarily chosen from hundreds, if not thousands, of retail modification chip providers in the United States.” According to the court, any issues that were mentioned in a perfunctory manner, “unaccompanied by some effort at developed argumentation,” were deemed waived.

The case is No. 13-3810.

Attorneys: Laura McMullen Ford, U.S. Attorney’s Office, for United States of America. Jaime P. Serrat (Jaime P. Serrat Law Offices) for William B. Silvius.

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