Ground Two: Prosecutorial Misconduct
FACT 1: The repeated use of the word “Stealing” from the copyright holders and other opinionated comments tainted the jury and diluted the presumption of innocence.
According to a pre-trial conference, Prosecutor James Moore was allowed by the court to use the word “steal’ as a verb, since, quoting the court, “if the government wishes to say stealing or theft, I think that’s fine. I just think it’s inappropriate to say that someone is a thief, which is a little different. It’s saying something about his character” ~ (ECF, Page 9, Line 12)
During the course of the trial there were five witnesses that allegedly had some sort of interest in the copyright ownership. While all five witnesses testified defendant Mr. Gordon did not seek permission to reproduce and distribute the respective properties, not one of the witnesses claimed the defendant stole from them or caused any loss to them or to anyone for that matter.
Toward the end of the trial, Defendant Mr. Gordon took the stand and testified that his defense involved Fair Use and Orphan Works. The prosecution continued to use the word stealing in his cross examination, clearly calling Mr. Gordon a thief.
Additional Facts
The prosecution repeatedly used the term "stealing" to describe the defendant's actions, despite the absence of any evidence of missing or stolen property from any witness.
The defendant's defense rests on the concept of Fair Use of Orphan Works.
The prosecutor's use of "stealing" went beyond describing the alleged actions and effectively labeled the defendant a thief.
Argument
The prosecutor's persistent use of the term "stealing" constitutes misconduct for the following reasons:
Mischaracterization of the Charges: The charges against the defendant do not involve theft. "Stealing" implies a criminal act with a specific legal definition. Using this term injects a more serious connotation into the case and unfairly prejudices the jury.
Lack of Evidence: No witness has testified to any losses or missing property. The word "stealing" implies a deprivation, which is unsupported by the evidence presented.
Inflammatory Language: "Stealing" is a loaded term that evokes negative emotions and biases the jury against the defendant. It bypasses a fair and objective evaluation of the evidence regarding Fair Use.
Cumulative Effect: The repeated use of this term throughout the trial created a prejudicial atmosphere.
The prosecution clearly called the defendant a thief in this exchange during the cross examination:
Mr. Moore: “So you—you protected your own work in copyright, but for other people’s work
that you were stealing , you put public domain or Fair use…”
Mr. Gordon: “Did you want me to agree to that or —”
Mr. Moore: “Well–”
Gordon: “I disagree to the term stealing, but—” (See ECF 177, Page 206, Line 18)
Then more times in the closing statements:
Mr. Moore “by stealing the property of others, (See ECF 177, Page 255, Line 23)
Mr. Moore: “immediately stop distributing pirated copies.” (See ECF 177, Page 259, Line 10)
Mr. Moore: “Ignored the warnings and continued intentionally stealing from the copyright
Holders” (See ECF 177, Page 259, Line 12)
So if the above statements doesn’t intentionally misrepresent the evidence, what would?
Additionally, in post trial documentation, no losses were submitted by the so-called copyholder victims in this case. While the pre-sentence report listed $638,659 as losses, that would be more intended losses as it was the defendant’s gain not anyone's actual loss.
The claim is not procedurally barred from a 2255 standpoint because, because Mr. Gordon’s then-attorney attended the above-mentioned conference and was aware of the court’s determination on the narrow use of the word “Stealing”. He should have objected to the Prosecutor's use of the word during and after the defendant’s testimony.
The lack of any precedent of a Fair Use of Orphan Works defense, in a civil or criminal copyright infringement context really doesn’t speak to the word, “Stealing”. But this paraphrased quote from Aaron Swartz, who was one of the early architects of Creative Commons and a developer of the Internet Archives' Open Library, a free book database and digital library open to the public does: “It's called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing [Orphan Works] isn't immoral - it's a moral imperative”
This is the five error supporting Mr. Gordon’s cumulative error doctrine claim.