Can The Government Use The Term 'Music Piracy' In A Criminal Copyright Trial?

from the apparently dept

Via Michael Scott, we learn that there was recently a debate over whether or not the government could use the phrase "music piracy" to describe the actions of an individual who had been charged with criminal copyright infringement. The case involved Adil Cassim, who had been arrested last year and charged with running a "release group," which are the private networks of people online who work hard to get unauthorized copyrighted materials (music, movies, etc.) distributed as quickly as possible. While Cassim was apparently acquitted by the jury (so far, I can't find any more info on what happened... Update: TorrentFreak has some details), there was a discussion over how the gov't could refer to his actions. His lawyer argued that "music piracy" is a prejudicial term, not related to the issues in the lawsuit, and that the gov't should not be allowed to use that term in front of the jury. The judge denied this:
Defendants seeks to exclude any use of the terms "music piracy" from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants' knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.
However, as Ray Dowd points out in the link above, this doesn't seem to make much sense. The word piracy is not in the statute, and the crime he's charged with is criminal copyright infringement, not piracy, so there's no reason that the proper terms can't be used:
I have litigated many copyright infringement cases without the need to refer to the word "piracy" though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work. But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.
Of course, since the guy was acquitted anyway, perhaps the entertainment industry is correct that "piracy" isn't derogatory enough anymore.

Filed Under: adil cassim, copyright, copyright act, criminal copyright infringement, music piracy, release group

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  1. identicon
    Anonymous Coward, 23 Mar 2010 @ 2:18pm

    It doesn't need to be in the statute

    I love the jailhouse (or is it schoolhouse) lawyers taking umbrage at the idea that prosecutors called criminal copyright infringement "music piracy." "Piracy" certainly seems preferable to terms like "theft." (Mike has written extensively in previous posts about the problems fitting that term to infringement.) And as others note above, like it or not, "piracy" has been used to describe infringement for over a century. I suspect these same commenters don't really understand their own complaints, and would be saying the same things if, instead of objecting to the term "music piracy," the defense has instead objected to calling it "criminal copyright infringement." Remember, the defendants hadn't yet been convicted, so if your complaint is that the defendants were being accused of something they hadn't been convicted of doing, that complaint holds for calling them "copyright criminals" or their acts "criminal copyright infringement" as well. On the other hand, if your complaint is that the prosecutors weren't supposed to use words other than those outside the statute, it's really hard to see what the big deal is. Prosecutors, plaintiffs, and defendants do this all the time. No, the criminal copyright statute doesn't use the word "piracy." But it doesn't use the words "upload," or "download," either, and yet these things can constitute infringement under certain circumstances. By the same token, state murder statutes sometimes use the term "kill," and sometimes "cause the death of," but I've never heard a defendant succeed in claiming that it's too prejudicial to accuse him of "killing" someone when they statute requires only that he "caused the death of" someone.

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