## Facts

- David Armstead sold bootleg DVDs of feature films that were still in theatrical release and not yet available as legitimate DVDs.
- The bootlegs were made by recording movies in theaters and were generally poor quality.
- In one transaction, Armstead sold 100 illicit DVDs to an undercover agent for $500 ($5 per disc).
- In a second transaction, he sold 200 illicit DVDs to the agent for $1,000 ($5 per disc).
- The government charged two felony counts of willful criminal copyright infringement under 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1).
- The felony enhancement required proof that, within a 180-day period, Armstead distributed at least ten unauthorized copies with a “total retail value of more than $2,500.”
- At trial, the only disputed element was how to determine “retail value”; Armstead argued it meant the bootleg sale price, while the government offered evidence of legitimate and prerelease values (including average and suggested DVD prices, and higher prerelease values).
- The jury convicted Armstead on both felony counts, and he appealed the felony classification based on alleged failure to prove the $2,500 retail-value threshold.

## Issues

1. Whether “total retail value” in 18 U.S.C. § 2319(b)(1) is limited to the illicit “thieves’ market” price actually paid for bootleg copies.
2. Whether the government may satisfy § 2319(b)(1)’s felony threshold using evidence of the legitimate retail value of the copyrighted works at the time of the infringement.

## Decision

- The Fourth Circuit affirmed the felony convictions.
- The court held that “retail value” under § 2319(b)(1) refers to the value of copies of the copyrighted material at the time the violation occurred.
- The court construed “retail value” as the highest of face value, par value, or market value in a retail context, and ruled that this measure includes but is not limited to bootleg value.
- Based on the trial evidence of legitimate retail and prerelease values, a rational jury could find the total retail value exceeded $2,500 for each charged distribution.

## Legal Principles

- For 18 U.S.C. § 2319(b)(1), “retail value” is assessed at the time of the infringement and sale.
- “Retail value” is not confined to the price of the infringing copies in an illegal market; the bootleg price is relevant but not exclusive.
- “Retail value” may be proven by the highest of face value, par value, or market value of the copyrighted material in a retail context.
- Sufficient-evidence review permits a felony conviction where evidence supports that the retail-context value of the distributed unauthorized copies exceeds the statutory threshold, even if the illicit sale price is lower.

## Conclusion

The Fourth Circuit upheld Armstead’s felony convictions, holding that § 2319(b)(1) “retail value” may be determined using the highest retail-context value of the copyrighted works at the time of infringement and is not limited to the bootleg sale price.


United States v. Armstead, 524 F.3d 442 (4th Cir. 2008)