Criminal Copyright Charges
These kinds of criminal copyright cases normally turn on whether the person who sold the counterfeit items knew that they were counterfeit. The government tries to prove that someone accused of these charges knew the goods were fake in a few different ways.
First, the government can try to show knowledge that the things were counterfeit through their own words – maybe they sent an email saying something that revealed that they knew what they were selling was fake. Or, in some cases, the government is cooperating with someone who is buying or selling counterfeit goods and they’ll have that person wear a wire. A recording of a person accused of criminal counterfeiting saying that he knows what he’s selling is fake can be devastating evidence at trial.
Second, the government sometimes tries to show folks accused of these offenses knew that the things they were selling were fake because the price was too low for the real thing. This can be tricky – most of the people who are accused of counterfeiting are relatively inexperienced in their business. When you start a business, you do a lot of learning about your market. And, of course, everyone knows that the way stores – either online or in person – work is that you buy goods at wholesale prices and sell them for higher prices. If you’re just starting out in the business, you may not know the difference between a wholesale price and the price for a counterfeit item.
Third, the government tries to show this by what the products themselves look like. Sometimes, counterfeit goods can be very convincing fakes – where you look at, for example, a DVD and it looks exactly like the real thing. Othertimes the same DVD may look clearly wrong; the box may look like a photocopy of the real box or the movie might clearly show an audience watching the movie, so that it’s clear someone just brought in a camcorder and videotaped the movie in the theater. This can be a little tricky these days in light of how the supply chain works. Sometimes a person can buy products from an online retailer and have them shipped straight to an Amazon distribution center where they’re sent out to the person’s customers. If that happens, the person accused of counterfeiting may never have had a chance to even see the materials – they may simply have no physical contact with the goods that they’re selling.
Finally, the government can try to show that someone knew that the items were counterfeit based on how they were acquired. If you bought stuff in a back alley at night, that looks more suspicious than if you bought the same things from a reputable online retailer.
All of these, though, are fact questions.
And, for every case, what the government thinks the facts are almost always differs from what the person accused of a white-collar crime - including criminal copyright charges - thinks the facts are.