United States v. Anderson, No. 12-10344 (12-19-13)(Callahan with Fernandez and Vance, Chief D.J., ED La).

There aren't many criminal copyright prosecutions around, and this is a rare one. Here, an ex-cab driver started selling Adobe software through his own website. The copied software was generic and burned on a CD and supposedly used only for back-up. They weren't. After a four day trial, the defendant was convicted. On appeal, the 9th affirms the conviction but vacates and remands the sentence. The 9th finds the used instruction on "willfulness" a muddle, and not as clear as it could be that the defendant knew his acts were illegal. However, under plain error review, the defendant's rights were not so trampled as to require reversal. Counsel accepted the proffered instructions, and the error was not plain. The 9th also affirmed the use of uncharged prior conduct as intrinsic to the charge. The sentence was reversed, though, because of restitution. The defendant was responsible for actual loss, not potential.