United States v. Reichert

Jeffrey Reichert (defendant) was a moderator for an online forum dedicated to the modification of video-game consoles by installing modification chips (mod chips). Mod chips altered the functionality of game consoles and could improve console performance or circumvent digital walls to allow consoles to play alternate software like pirated video games. Reichert openly operated and advertised a business for installing mod chips. Modifying a console was a complicated process and required specific technical knowledge. Forum postings showed that Reichert had high-level knowledge of the mod-chip-installation process, enough to provide advice regarding chip types and other educational resources. Reichert made posts acknowledging that people were not technically supposed to install mod chips. Agents of the United States government (government) (plaintiff) went undercover and arrested Reichert for violating the Digital Millennium Copyright Act (DMCA). Reichert told an agent that he knew mod chips were in a “gray area.” At trial, the judge instructed the jury that to convict, Reichert had to have willfully acted to disobey the law by knowing his actions were illegal and choosing to continue to act. The judge also stated that if Reichert deliberately ignored a high probability that he was trafficking in circumvention technology, the jury could find Reichert knew he was violating the DMCA. The judge then concluded that to convict, the jury had to be convinced that Reichert was aware of a high probability that he was violating the DMCA and deliberately closed his eyes to the obvious. The jury convicted Reichert. Reichert appealed the conviction, arguing in part that the jury was improperly instructed that Reichert’s knowledge that he was trafficking in circumvention technology was sufficient to prove willfulness.