that he was violating the law by trafficking in such technology. Reichert’s argument rested
primarily on the first portion of the deliberate ignorance instruction, which stated, “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.” The Sixth Circuit noted that because this part
of the instruction seemed to inform the jury that if Reichert deliberately ignored a high
probability that he merely engaged in the conduct at issue, then the jury could find that he knew
that his conduct violated the DMCA. The Sixth Circuit noted that this part of the instruction
could have been more precise.^1189
However, the court noted that, to the extent the challenged portion of the instruction was
imprecise, it was not given in a vacuum. Instead, it was sandwiched between two instructions
that stated the stricter requirement of willfulness and clarified the challenged language.
Immediately before the challenged sentence, the district court had given its instruction on
willfulness generally, explaining that an act is willful if done with the intent either to disobey or
disregard the law and that the defendant must have acted with the intent to do something the law
forbids. And immediately after giving the challenged portion of the deliberate ignorance
instruction, the district court had cautioned the jury that, to find Reichert knew he was violating
the DMCA, the jury must be convinced beyond a reasonable doubt that Reichert was aware of a
high probability that he was violating the DMCA and that he deliberately closed his eyes to what
was obvious. Accordingly, the Sixth Circuit found that, when viewed as a whole, the
instructions properly instructed the jury on the issue of willfulness. The Sixth Circuit noted that,
having been properly instructed, the jury had 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. Because Reichert had not
directly challenged the jury’s factual finding in that regard, the court rejected his challenge to his
conviction on the basis of the allegedly erroneous jury instructions.^1190
(15) Other Uses of the Anti-Circumvention Provisions as a
Sword
The RealNetworks and Reimerdes cases suggest how the anti-circumvention provisions
of the DMCA might be used as a “sword” in other ways. For example, the manufacturer of a
database product that enables users to password protect data files might bring an action under the
DMCA against the manufacturer of “cracking” software that enables third parties to bypass or
deactivate the password protection on such data files. The manufacturer of the database product
might, for example, allege “injury” from the “cracking” software in the form of damage to its
reputation as the manufacturer of a “secure” product. Alternatively, if a claim were made against
the database product manufacturer by a user alleging injury resulting from the user’s data file
being “cracked” by a third party, such claim would provide another basis for the database
product manufacturer to allege its own injury from the “cracking” software.
(^1189) Id. at 451-52.
(^1190) Id. at 452-53.