UNITED STATES v GORDON in the District of Maine 2019 My 2255 update
I am going to post my work-in-progress on my 2255 motion. This is from the Original motion filed while I was in prison on 9/23:
GROUND ONE; Improper/Incorrect/Conflicting Jury Instructions
FACT 1: Jury Instruction of Fair Use improperly shifted the Burden of proof to the Defendant
This instruction contributed to the violation of Mr. Gordon’s Due Process Rights. The Court stated: “On one issue, FAIR USE, the law places the burden of proof on Mr. Gordon. This is what is known as an affirmative defense and is potentially applicable only to the two copyright counts. In the event the government proves the elements of a copyright violation beyond a reasonable doubt, Mr. Gordon asserts that, even though protected by copyright law, his use of the copyrighted works was legal because it was fair use, on this issue alone, Mr. Gordon bears the burden of proof, but the standard of proof for this affirmative defense is not beyond a reasonable doubt. Mr. Gordon needs only prove this affirmative defense by a preponderance of the evidence, that is, that his use was more likely fair use than not. I will describe fair use in further detail later in these instructions.” ~ (See The Orphan Works Trial, Book 3)
The actual Jury instructions read: “Defense. FAIR USE. One who is not the owner of a copyright may use the copyrighted work in a reasonable way under the circumstances without consent of the copyright owner if it would advance the public interest. Such use of a copyrighted work is called Fair Use. The owner of a copyright cannot prevent others from making a fair use of the owner’s copyrighted work. ……
…. (Here’s the part in the instruction that was unconstitutional:) If you find that Mr. Gordon proved by a preponderance of the evidence he made a fair use of the copyrighted work, you should not find that Mr. Gordon infringed the copyright of that particular work.”
The Original supporting ARGUMENT for GROUND ONE:
FAIR USE, is part of the Copyright Act and is codified under 17 U.S.C section 107. Any Alleged infringement that is found to be Fair Use, as determined by a Judge or Jury is NOT an excused infringement or a justified infringement. Fair Use is authorized by law.
“Anyone who is authorized by the copyright owner to use the copyrighted work in a way specified in the statute or who makes FAIR USE of the work is NOT AN INFRINGER of the copyright with respect to such use.” ~ Sony Corp. of Am. v. Universal City Studios, Inc. , 464 U.S. 417, 433, 104 S. Ct. 774, 78 L. Ed 2d 574 (1984) (Supreme Court).
Therefore, at Trial when the Court allowed Fair Use to be used as a defense the burden of production had been met. The Government SHOULD have had the ‘burden of proving beyond a reasonable doubt’ that there was no fair use with the five movie titles listed in the Copyright Charges. The Fair Use defense in a Criminal Copyright infringement proceeding negates both the infringement and willful elements.
“The DUE PROCESS clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the [charged] crime.” ~ In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 905, Ct. 1068 (1970) (Supreme Court)
The above Jury Instruction concerning the Burden of Proof Of Fair Use was unconstitutional and it was ineffective assistance of counsel for Mr. Gordon’s then-attorney NOT to Object to the Instruction. (See also GROUND FOUR)
This fact was error #1 in Mr. Gordon’s cumulative error doctrine claim.
1-2 Jury Instruction on ‘Orphan Works’' was incorrect. United States Law does recognize the concept under 17 U.S.C. Section 108.
This instruction also contributed to the violation of Mr. Gordon’s Due Process Rights. The legally incorrect instruction was added at the end of the trial because of the Defendant’s testimony about his beliefs and theories of Fair Use and Orphan Works. The instruction was included with no discussion from or objection by the Defendant’s Attorney.
The actual instruction read: “ORPHAN WORK. There has been testimony in this case about the term Orphan Work, which has been defined as an original work of authorship for which a good-faith potential user cannot readily identify and/or locate the copyright owner in a situation where permission from the copyright owner is necessary as a matter of law. United States copyright law does not recognize the concept of Orphan Work. Under United States copyright law, an orphan work is entitled to the same protections that govern all copyrighted work. If a work is copyrighted, a user may not use the concept of Orphan Work to use the work without violating the copyright.” ~ (See The Orphan Works Trial, Book 3)
The Original supporting argument for Fact TWO:
The court was in error to include such an instruction. The above statement is legally incorrect and misleading. The concept of Orphan Works is codified by US law under 17 USC section 108. In fact, the section that explains how creating copies of Orphan Works is legal [Section 108(i), is cited as the ‘Preservation of ORPHAN WORKS Act’ Additionally, there is a portion in the above statute reads:
“Nothing in this section … in any way affects the right of FAIR USE as provided by Section 107” - 17 USC sec. 108(f)(4) Thus, providing a legal basis to Mr. Gordon’s testimony regarding what he considered to be the FAIR USE of ORPHAN WORKS.
While it would have been conceivable that the Court could refuse to include an Orphan Works instruction such as it did with the ‘First Sale’ defense that was proposed by the Defendant’s Attorney, on the basis that it was not applicable. It was an error to give an instruction that inaccurately represents the law as the Court did with the above Orphan Works Instruction. Thereby, ‘stacking the deck’ in favor of the prosecution. While it was unintentional on the court’s part, it still unfairly pointed to the Jury to disbelieve and distrust Mr. Gordon’s testimony.
Had the instruction been properly presented at Trial along with the correct instruction for Fair Use and/or testified about by someone knowledgeable about Copyright Law, any reasonable Jurors would have had doubt about Mr. Gordon intentionally breaking the law. Since the FAIR USE of ORPHAN WORKS is still unsettled law, any reasonable Jury could have determined Mr. Gordon’s ACTUAL INNOCENCE. (See Ground FOUR)
This fact was error #2 in Mr. Gordon’s cumulative error doctrine claim.
FACT 3: The Willful Blindness Jury Instruction conflicted with the Fair Use Instruction and created Jury Confusion and diluted the presumption of Innocence.
The actual instruction as read: “The third element of the offense is that Mr. Gordon acted willfully when he infringed the copyright. The word willfully, as the term is used in the superseding indictment or these instructions, means to act voluntarily and intelligently and with the specific intent the underlying crime be committed; that is say, with bad purpose, either to disobey, or disregard the law, not to act by ignorance, accident or mistake. While a person must have acted with the intent to do something the law forbids before you can find the person acted willfully, the person need not be aware of the specific rule or law that his conduct may be violating. Moreover, Mr. Gordon’s actions could be willful even if he knew that the copying maybe illegal, but did not know that it was to a certainty. At the same time, evidence of reproduction or distribution of a copyrighted work by itself is not sufficient to establish willful infringement of a copyright.” ~ (See The Orphan Works Trial, Book 3)
The Original supporting argument for Fact THREE:
An Instruction setting up a presumption, which has the effect of relieving the prosecution of the burden of proof on an element of a charged crime, violates the Due Process Clause. See Sandstrom v Montana, 442 U.S. 510, 520, 520-24, 61 L. Ed. 2d 39, 99 St. S.Ct 2450 (1979)
The Willful Blindness instruction conflicts with the FAIR USE instruction and would also conflict with a correct ORPHAN WORKS instruction. What would be the point of determining the FAIR USE of ORPHAN WORKS if you are presuming that the Defendant ‘should have known better’?
The instruction also fails the three prong requirement for this case:
The First Circuit recognizes a three prong ‘test’ to see if a ‘willful blindness’ instruction is appropriate “if [1] a defendant claims a lack of knowledge, [2] the facts suggest a conscious course of deliberate ignorance, and [3] the instruction, taken as a whole, cannot be misunderstood an inference of knowledge.” UNITED STATES v COVIELLO, 225, F. 3d 54, 70 (1st CIR 2000) [ quoting UNITED STATES v RICHARDSON, 14 F. 3d 666, 671 (1st CIR. 1994) ]
Looking at the evidence as a whole; none of these three prongs were met: (1) a defendant claims a lack of knowledge, Mr. Gordon did not claim a lack of knowledge, he claimed that it was his interpretation of Copyright law that the movies he copied and distributed were ORPHAN WORKS and his USE was FAIR. The FAIR USE of ORPHAN WORKS was and remains unsettled law, so what knowledge was proven by the evidence? That customers, legal laypersons, or law enforcement personal, also laypersons in the complex world of Fair Use/Orphan Works TOLD Mr. Gordon that his actions were illegal?
(2) the facts suggest a conscious course of deliberate ignorance. Deliberate ignorance of what? Again, FAIR USE of ORPHAN WORKS is UNSETTLED law. The evidence presented at trial actually points to the opposite. Mr. Gordon removed any property from his website immediately when, on the rare occasion, he was contacted by a rightsholder. This was a simplistic, overly cautious act that large companies like Google, Amazon also do, except they REQUIRE the rightsholder claimant to prove or state under penalty of perjury that the claimant actually owns the copyright. The Defendant didn’t do that, he simply removed the property in question.
There was no way for him to confirm the high probability of wrongdoing, because the ‘wrongdoing’ as a matter of law didn’t exist.
(3) the instruction, taken as a whole, cannot be misunderstood as an inference of knowledge, That is the only way this instruction COULD BE taken in this case. The Jury would have to start at the point of the copying was wrong and illegal and the Defendant should have known better. The instruction canceled out any need for a FAIR USE/ORPHAN WORK analysis.
It was a court error to allow this instruction in a case of UNSETTLED COPYRIGHT LAW, additionally it was ineffective assistance of counsel for Mr. Gordon’s attorney not to object to the instruction and present the reasons why.
The jury confusion was very evident when they asked the following question of the Judge:
“For Count 3, mail fraud, we want to know if the defendant needed to know that mailing fraudulent material through USPS is illegal.” ~ (See Fact #4)
Because of the Willful Blindness Jury Instruction, there was no need for the Jury to determine the status of the “Willful” element of the copyright charges. The instruction presumptuously does it for them. While the willfulness element and the evidence was discussed and decided in the direct appeal, the issue is cognizable under Habeas, for these reasons:
The incorrect Jury Instructions surrounding the FAIR USE of ORPHAN WORKS; and
Mr. Smith also represented Mr. Gordon for the direct appeal, so the ineffective assistance of counsel claims would also come into play.
The FAIR USE of ORPHAN WORKS has never been ruled on at a civil or criminal copyright infringement proceeding so how did the Defendant have DELIBERATE IGNORANCE? Which is, as stated above, a requirement of the justification of a Willful Blindness Jury Instruction.
Allowing a Jury Instruction of Willful Blindness in a proceeding involving the FAIR USE of ORPHAN WORKS was a court error and it was ineffectual assistance of Counsel for Mr. Gordon’s attorney did not object to the Instruction.
This fact was error #3 in Mr. Gordon’s cumulative error doctrine claim.
FACT 4: Jury Instruction stating that Fair Use was irrelevant to the mail fraud charge was also incorrect. Because a determination of Fair Use would have affected the indictment as the DVDs would have been "authorized" by law.
The superseding indictment for Mail Fraud mentions ‘with authorization’ 3 times when referring to Mr. Gordon’s actions.
If the Jury had decided that Fair Use nullified the copyright charges in this case, that would have removed a major foundation on which the Mail Fraud charge was based, according to the indictment. So, no copyright infringement equals no fraud.
The connection from Copyright Infringement to Mail Fraud is already legally tenuous, as demonstrated in several in past copyright. Fraud cases:
“A scheme or artifice to defraud, the object of which was to fraudulently obtain possession of the copyright itself would, I believe, be clearly punishable under the mail and wire fraud…But see Dowling, supra, 473 U.S. at 217, 105 S. Ct at 3133 (‘[The infringer] does not assume physical control over the copyright, nor does he wholly deprive the owner of it’s use’.) ([United States v LaMacchia, 871 F. Supp. 535 (D. Mass 1994)])
There was no evidence presented at trial, that Mr. Gordon told any customers he had authorizations from Copyright holders or made any fraudulent representations in any way with the on-line transactions.
Without the copyright charges, the on-line sales were just ordinary on-line sales. The same as millions of other transactions that occur on line everyday.
Mail Fraud requires intent to steal something tangible which isn’t the case with copyright infringement and fair use removes the infringement thus eliminating the crime element.
The government in their response stated, “...such a construction would have created confusion for the jury.” It could be argued that the jury was already confused, that's why they asked the question revolving around willfulness and mail fraud.
This is the fourth error supporting Mr. Gordon’s cumulative error doctrine claim.