William Patry: The Crime of Selling Abandoned Copies

William Patry: The Crime of Selling Abandoned Copies

If you came across a trash can filled with lawfully made compact discs and DVDs that the copyright owner had authorized to be put in that trash can and then thrown away because it didn’t want to pay the postage to have them returned, do you think you could be criminally prosecuted for selling those copies, and would you think that the copyright owners would be entitled to restitution under the Mandatory Victims Restitution Act? If you answered no to these questions, you would be wrong according to the Eighth Circuit.

Here’s the opinion, United States v. Chalupnik, 2008 WL 268997 (8th Cir. Feb. 1, 2008), court’s docket no. 07-1355, available on the court of appeals’ website, here (search for Chalupnik).

The facts are pretty much these (at least as recited in the opinion): defendant was an employee for the U.S. Postal Service. BMG Columbia House is a mail order operation selling CDs and DVDs by mail. Many of these discs are undeliverable. Rather than pay the postage to have them returned to it, BMG Columbia House instructed the Postal Service to throw them away. The Postal Service did throw them away. Defendant then retrieved them from the trash and sold them to area stores, netting $78,818. A surveillance camera showed defendant retrieving the items and he was arrested; he was originally charged with felony mail theft, but then pleaded guilty to misdemeanor copyright infringement. The trial court sentenced defendant to two years probation and ordered him to pay $78,818 to BMG in restitution. Chalupnik appealed .