"Deliberate Ignorance" Sufficient Mens Rea For Criminal Conviction Under DMCA

Richard Raysman is a Partner in our New York office

As a Circuit judge recently noted in dissent, the Digital Millennium Copyright Act (DMCA) strives to "achieve a balance between strengthening copyright law and preserving consumer rights, promoting technological innovation, and protecting First Amendment speech in our increasingly digitized culture." Some of the provisions in the DMCA that specifically pertain to "strengthening copyright law" are known as the "anti-circumvention" rules. These rules impose liability upon those who either (1) circumvented technological controls designed to prevent copyright as a means of committing copyright infringement, or (2) circumvented technological controls as a means of facilitating copyright infringement by another. See U.S.C. § 1201(a)(1), 1201(a)(2). A willful accomplishment of either of these methods of circumvention is a criminal offense. See 17 U.S.C. § 1204(a).