United States v. Klimecek

United States v. Klimecek, 2009 U.S. App. LEXIS 751

Klimecek was a member of a group that overrides copyright protection measures embedded in things such as movies and video games and then would make these items available for unauthorized download by Internet users. He was indicted for violating infringement rights for reproducing and distributing.

Procedural Posture:
Klimecek pled guilty. The district court determined that he was not eligible for a two-level offense level deduction for being a minor participant in the infringement operation. Klimecek appealed his sentence.

A defendant may have the offense level reduced by two levels if they were a minor participant in the offense. A minor participant is a defendant whose plays a part in committing the offense that makes him substantially less culpable than the average participant and is less culpable than most other participants, but his role could not be described as minimal. Defendant must show by a preponderance of the evidence.

Klimecek was crucial to the copyright infringement because had he not bought the hardware and software components, set up the server, connected it to the Internet, and paid half of the monthly Internet service charges, the dissemination of the copyrighted materials could not have occurred. District court did not clearly err.

Important Dicta:
A defendant cannot be deemed a minor participant if his function was an essential component of the scheme.

Likely Future Importance or Unanswered Questions:
This case makes me think of cases such as Frena or Ticketmaster…if you establish a bulletin board which gives the opportunity for others to make copies are you essential to the copyright infringement or was the other person who uploaded and made the copy the major actor? If you launch the crawler into the system is that essential or is the major actor the person who designed the crawler to make copies of work? Or both?

Critical Analysis:
If it’s too good to be true, it probably is…don’t get into the copyright infringement business.

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