United States v. Tim O’Reilly, 794 F.2d 613, 11th Cir. (1986)

Excerpts: United States v. Tim O’Reilly, 794 F.2d 613, 11th Cir. (1986)

  • 794 F.2d 613230 U.S.P.Q. 475, 1986 Copr.L.Dec. P 25,962
  • UNITED STATES of America, Plaintiff-Appellee, v. Tim O’REILLY, Defendant-Appellant.
  • No. 85-8742.
  • Tim O’Reilly was convicted of criminal copyright infringement by the sale of certain video games in violation of 17 U.S.C.A. Sec. 506(a) and 18 U.S.C.A. Sec. 2319(b)(1)(B). Although those statutes require proof of several elements, O’Reilly challenges only the sufficiency of the evidence of the first element: infringement of a copyright. We affirm.
  • This conviction arose from the sale of video game circuit boards. When Data East USA, Inc. complained to the FBI that a large number of individuals were distributing counterfeited copies of their video games, Karate Champ and Kung Fu Master, the FBI began an investigation. Special Agent George Murray posed as a businessman interested in buying counterfeited copies of Karate Champ, Karate Champ (2-Player), and Kung Fu Master games. He contacted O’Reilly and on two occasions purchased printed circuit boards from him, the first time 49 boards and the second time 65 boards. During their dealings, Agent Murray recorded numerous incriminating conversations.
  • O’Reilly’s first argument, that the Government failed to prove what is copyrighted, is frivolous.
  • O’Reilly argues that in two ways the evidence was insufficient to prove his games violated the copyrights . . . Here, as in Shabazz, O’Reilly did not meet his burden of raising an issue on this point.
  • Second, O’Reilly argues that the Government did not compare the entire play of the counterfeit boards with the copyrighted games.
  • O’Reilly argues that the Government thus failed to prove that levels two through five of the games he sold were the same as or substantially similar to those in the copyrighted games.
  • On numerous occasions, O’Reilly represented the game boards he sold to Agent Murray as Karate Champ and Kung Fu Master boards. The expert testimony, the jury’s own observations and these statements could have been found by the jury to establish proof of infringement beyond a reasonable doubt.