United States Court of Appeals

For the First Circuit

No. 21-1023

UNITED STATES OF AMERICA,

Appellee,

v.

DOUGLAS GORDON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock Jr., U.S. District Judge] 

Before

Lynch and Kayatta, Circuit Judges,

and Woodlock,* District Judge.

Stephen C. Smith for appellant.

Darcie N. McElwee, United States Attorney, with whom Benjamin 

M. Block, Assistant U.S. Attorney, was on brief for appellee.

June 23, 2022

* Of the District of Massachusetts, sitting by 

designation.
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WOODLOCK, District Judge. The appellant, Douglas 

Gordon, a film buff since childhood, turned his youthful avocation 

into a criminal vocation when he systematically and deceptively 

sold counterfeit DVDs of movies without copyright authorization. 

A federal jury found Mr. Gordon guilty of two counts for 

his criminal copyright infringement and one count of mail fraud

for his scheme of deceptive marketing. He was sentenced to thirtysix months of imprisonment on the two copyright counts and sixty 

months on the mail fraud count, the sentences to be served 

concurrently as to each count. Mr. Gordon does not challenge his 

mail fraud conviction. 

On this appeal, he argues nevertheless that 1) the 

verdict should be vacated because the evidence did not show he 

willfully committed copyright violations, and/or in the 

alternative, 2) that his sentence must be adjusted because of 

alleged errors in the district court's loss calculation. We find 

these arguments unavailing and affirm.

I. BACKGROUND

A. Facts

From the evidence presented at trial, a reasonable jury 

could find the following facts.

During the period of criminal activity alleged in the 

superseding indictment on which he was tried — from about January
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21, 2014 to January 20191 — Mr. Gordon ran Edge Video, a small 

chain of video stores, and several websites to sell and rent films, 

including findrareDVDs.com, lostmoviesfound.com, and 

lostmoviefinder.com. These websites sold DVDs of movies not widely 

available for sale by making copies that Mr. Gordon and his 

employees — or a third-party company, at Mr. Gordon's direction —

derived from "master" DVDs, which were in turn copied from VHS 

tapes. 

Customers and copyright holders were unhappy about these 

commercial activities and made that known to Mr. Gordon. His 

employees routinely heard complaints — which they forwarded to 

him— from customers who believed they would receive a legitimate 

DVD, not a duplicate disc, or found the DVDs did not work or were 

of low-quality. One employee said she heard "hundreds" of 

complaints and another said complaints came "[a]lmost daily." The 

Better Business Bureau forwarded numerous customer complaints to 

Mr. Gordon. Copyright holders also sent him cease-and-desist 

emails upon their discovery of the reproductions.

1 The counts in the superseding indictment alleged 

overlapping time periods of criminal activity. Count 1, the first 

copyright count, alleged a period "beginning on or about January 

21, 2014 and continuing to about June 3, 2014." Count 2, the 

second copyright count, alleged a period "beginning on or about 

July 12, 2016 and continuing to about December 30, 2016." Count 

3, the mail fraud count, alleged a scheme to defraud "[f]rom about 

April, 2014 to about January, 2019."
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State and federal authorities investigated, beginning

their inquiries even before the period of criminal conduct alleged 

in the superseding indictment. First, the Maine Attorney General's 

Office on August 10, 2012, sent a demand letter to findrareDVDs.com 

and Edge Video that asked for documents related to "unfair and 

deceptive acts and practices . . . and possible copyright 

violations." Maine's Attorney General referred the case to the 

federal government thereafter when Mr. Gordon failed to comply

with the demand letter. 

The ensuing federal investigation uncovered hundreds of 

orders for DVDs, over two hundred complaints from customers, and 

multiple cease-and-desist emails. A search of Mr. Gordon's 

residence on August 4, 2015 turned up DVD duplicators, computers, 

master discs, copies of discs to be mailed out (with the FBI 

copyright warning removed from films), and mail addressed to 

findrareDVDs.com. The federal government sent Mr. Gordon a target 

letter on the same date as the search, notifying him that he was 

under investigation for "mail fraud, wire fraud, and criminal 

infringement of movies protected by copyright."

Despite the complaints, the investigations, and the 

letters from state and federal authorities, Mr. Gordon was 

undeterred. An associate testified that Mr. Gordon continued 

copying movies months after the August 2015 search. The Motion 

Picture Association, a movie studio trade organization, bought a 
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movie from lostmoviesfound.com in December 2016 and received what 

it described as a counterfeit copy. The Association then sent Mr. 

Gordon a cease-and-desist letter, noting his actions were illegal 

under federal law. 

Mr. Gordon doubled down by employing an out-of-state 

vendor to conceal his operations. Starting in March 2017, he had 

Kunaki, a Nevada company, take over copying and mailing DVDs. He 

told an associate that, were federal investigators to search his 

home again, "they [wouldn't] find anything and they [wouldn't] be 

able to take this away from [him]." Kunaki would later suspend 

Mr. Gordon's accounts, first in early December 2018 due to a 

complaint from a purchaser that a disc was "pirated," and then 

several weeks later after a federal agent contacted the company.

A second search of Mr. Gordon's residence on May 10, 

2017, again found a DVD duplicator, computers, DVDs, VHS tapes, 

order forms, and mail sent to findrareDVDs.com and

lostmoviesfound.com. The seized computers showed a user had 

visited copyright.gov and retrieved copyright certificates. A 

user had also, between August 2015 and June 2016, searched for 

information on copyright infringement and defenses.

B. Charges and Trial

In the operative charging document, the superseding

indictment handed down on April 17, 2019, Mr. Gordon was charged 

with two counts of criminal copyright infringement, in violation 
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of 17 U.S.C. § 506(a)(1)(B) and 18 U.S.C. §§ 2319(a), 2319(c)(1) 

and 2, and one count of mail fraud, in violation of 18 U.S.C. 

§§ 1341 and 2.2 A jury found Mr. Gordon guilty of all three counts.

At trial, Mr. Gordon contended his actions were not 

willful because he believed that his sales were permitted based on 

the DVDs' status as orphan works and on the fair use doctrine. As 

to orphan works, Mr. Gordon testified that he believed that if the 

owner of content no longer existed, he was free to reproduce it, 

since "there would be no damages if there's no copyright holder." 

As to fair use, Mr. Gordon testified he believed after considering 

the matter that his reproductions were permissible. He testified 

he would primarily consider whether the movie was ever on DVD — if 

not, he might sell it, because he assumed any sales could not 

affect the DVD market. And he further testified he would consider 

whether the movie was old enough to "have an educational value to 

society," which, in his view, would weigh in favor of fair use.

As to the copyright counts, the jury was instructed that 

they needed to find, among other things, "that Mr. Gordon infringed 

the copyright willfully." The jury was told that to act willfully 

"mean[t] to act voluntarily and intelligently and with the specific 

2 The copyright counts in the superseding indictment were 

identical to the copyright counts brought in the original 

indictment handed down on January 17, 2019. The original 

indictment charged only copyright violations. The mail fraud count 

was added in the superseding indictment.
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intent that the underlying crime be committed, that is to say, 

with bad purpose, either to disobey or disregard the law, not to 

act by ignorance, accident, or mistake."3 Further, the jury was 

told that "Mr. Gordon's actions could be willful even if he only 

knew that the copying may be illegal, but did not know that it was 

to a certainty." The jury was told "[t]he willfulness requirement 

[could] also be satisfied if there [was] a showing that Mr. Gordon 

deliberately disregarded a high probability that he was infringing 

copyrights."

In addition to the instruction on willfulness, the jury 

received instructions on fair use and orphan works. The district 

court told the jury that "United States copyright law does not 

recognize the concept of an orphan work." For fair use, the jury 

was told that if it found "the elements of a copyright violation 

beyond a reasonable doubt," Mr. Gordon needed to show that "his 

use was more likely fair use than not," based on a preponderance 

of the evidence. Mr. Gordon does not challenge any of these 

instructions.

3 We note our decision in United States v. Beltran merely 

assumed without deciding that specific intent is required by the 

willfulness element of a criminal copyright infringement charge. 

503 F.3d 1, 2 (1st Cir. 2007); see also United States v. Liu, 731 

F.3d 982, 989-90 (9th Cir. 2013). This case does not raise any 

question concerning that issue because there is no challenge to 

the instructions presented here.
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C. Sentencing

The presentence report prepared by the Probation Office 

performed two loss calculations, one for the copyright counts and 

one for the mail fraud count based on deceptive marketing. For 

both calculations, the presentence report relied on the 

government's records submitted at trial and found a value of 

$638,659.60 for each calculation. The report noted that in 

copyright cases it is preferable to rely on the retail value of 

the infringed items. See U.S.S.G. § 2B5.3 n.2(A)(v). Although 

the movies at issue in the report were not sold commercially — as 

a result of which no direct retail price point was available — the 

report found Mr. Gordon sold DVDs for close to or more than the 

average price of a DVD for a feature film at the time. Thus, the 

report found the $638,659.60 figure applicable, as a sum based on 

Mr. Gordon's proceeds.

The presentence report then grouped the three counts 

together for purposes of the offense level guideline calculation, 

because the counts "involve[d] two or more acts or transactions 

connected by a common criminal objective or constituting part of 

a common scheme or plan," and for the additional reason that "the 

offense level [was] determined largely on the basis of the total 

amount of harm or loss." See U.S.S.G. §§ 3D1.2(b) and (d). To 

calculate the total offense level for the group, the report started 

by considering what the offense levels would be separately for the 
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mail fraud count and for the copyright counts. The mail fraud 

count had a base offense level of seven, U.S.S.G. § 2B1.1(a)(1), 

and the copyright counts both had a base offense level of eight, 

U.S.S.G. § 2B5.3(a). The $638,659.60 loss value meant a fourteenlevel increase over the base level for all counts, because that 

loss amount fell in the range between $550,000 and $1,500,000. 

See U.S.S.G. §§ 2B1.1(b)(1)(H) and 2B5.3(b)(1). Ultimately, the 

mail fraud count produced the highest total offense level — 31, 

compared to 30 for the copyright counts — due to other specific 

offense characteristics4 not relevant for the copyright counts; 

consequently, the report found the total offense level for mail 

fraud applicable. See U.S.S.G. § 3D1.3(a).

At his sentencing hearing, Mr. Gordon made three

objections to the loss calculation in the presentence report. 

First, he argued the sales included in the calculation were too 

speculative. Second, he contested "whether sales from 

findrareDVDs.com and lostmoviesfound.com were part of the same 

course of conduct as the offense of conviction." See U.S.S.G. §

3D1.2(b). Third, he said the calculations of loss incorrectly 

included some legitimate sales.

4 These additional offense characteristics, only 

applicable for mail fraud, concerned the victim count, see U.S.S.G. 

§ 2B1.1(b)(2)(A)(i), and Mr. Gordon's decision to relocate the 

scheme to another jurisdiction to evade detection, see U.S.S.G. § 

2B1.1(b)(10)(A).
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The district court rejected those arguments and adopted 

the loss calculations in the presentence report. Relying on a

government affidavit mirroring the records presented at trial and 

used in the presentence report, the district court found the

$638,659.60 loss figure supported. Relying upon United States v. 

Pennue, 770 F.3d 985 (1st Cir. 2014), the district court concluded

sales in this figure were all part of the same course of conduct. 

The district court further found that even if some sales included 

within the loss calculation figure were "legitimate," there would 

not be nearly enough proceeds from "legitimate" sales to lower the 

loss amount below $550,000, the threshold triggering the fourteenlevel increase. Accordingly, the district court grounded its 

guideline calculation on the presentence report loss analysis.

Based on this loss analysis, together with other 

guideline factors considered, Mr. Gordon's total offense level was 

determined to be 31 and, because he had no criminal history, the 

resultant guideline range was 108 to 135 months.5 See U.S.S.G.

ch. 5, pt. A (sentencing table). Mr. Gordon was sentenced to 

concurrent prison terms of thirty-six months for the copyright 

counts and sixty months for the mail fraud count.

5 Had sentencing been based exclusively on the copyright 

counts, Mr. Gordon's offense level would have been 30, one level 

lower than his offense level for the mail fraud. An offense level 

of 30, combined with Mr. Gordon's lack of criminal history, would 

have resulted in a guideline range of 97 to 112 months. See

U.S.S.G. ch. 5, pt. A (sentencing table).
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D. Arguments on Appeal

Mr. Gordon filed a timely notice of appeal on January 6, 

2021. He presses two arguments on appeal, neither of which were 

presented to the trial court. First, he says there was 

insufficient evidence for the jury to find that his copyright 

infringements were willful. Second, he says the district court 

erred in its guideline loss calculation in two ways. He contends 

(a) the district court was wrong to account for sales of movies 

for which the government did not submit copyright certificates,

and (b) the district court failed to account for refunds that he 

gave to dissatisfied customers.

II. MERITS

A. Sufficiency of the Evidence

Because Mr. Gordon did not present a Rule 29 motion at 

the close of the government's case nor after his presentation of 

evidence, and he did not move for judgment of acquittal after the 

jury's verdict, we review his challenge to the sufficiency of the 

evidence for clear and gross injustice. See United States v. 

Hernández-Román, 981 F.3d 138, 143 (1st Cir. 2020). In this 

connection, "[t]here can be no clear and gross injustice if the 

evidence, scrutinized in the light most congenial with the verdict, 

can support a finding of guilt beyond a reasonable doubt." Id.

Mr. Gordon's challenge centers on whether the evidence 

showed he willfully committed copyright violations. "[W]hen used 
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in the criminal context, a 'willful' act is one undertaken with a 

'bad purpose.'" Bryan v. United States, 524 U.S. 184, 191-92 

(1998) (footnote omitted). That is, "in order to establish a 

'willful' violation of a statute, 'the Government must prove that 

the defendant acted with knowledge that his conduct was unlawful.'" 

Id. (quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)). 

Guilty knowledge can be inferred based on the defendant's disregard 

of warning signs "sufficient to put a reasonably prudent person on 

inquiry notice." United States v. Singh, 222 F.3d 6, 11 (1st Cir. 

2000). This standard aligns with the jury instructions given at 

Mr. Gordon's trial, and Mr. Gordon does not challenge those 

instructions, only the sufficiency of the evidence as to

willfulness.

There is overwhelming evidence that Mr. Gordon could be 

found not merely to have deliberately closed his eyes to the 

illegality of his conduct. More fundamentally, the jury could 

easily have found that he acted with actual knowledge that his 

conduct was illegal. 

As a filmmaker, Mr. Gordon took care to mark his own 

work for copyright protection. In fact, he described to a 

colleague how to seek copyright protection, the reasons for doing 

so, and the risks for filmmakers in using copyrighted work 

belonging to others. In the course of selling copied DVDs — from 

which he stripped the FBI copyright warnings used in the originals 
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— he received complaints from copyright holders. Mr. Gordon 

persisted in his activities even while knowing he was under 

investigation by the Maine Attorney General and the federal 

government. With this record, a rational jury could readily 

conclude beyond a reasonable doubt that Mr. Gordon acted willfully.

Mr. Gordon says that he considered the potential illegal 

nature of his actions and that he did his best to obey the law by 

following his understanding of the concepts of "orphan works" and 

of fair use. But those arguments wither in the light generated 

by the many warning signs demonstrating his knowledge that he was 

breaking the law. We are tasked with construing the facts in the 

light most favorable to the jury's guilty verdict. With that in 

mind, even if we could discern some plausibility to Mr. Gordon's 

arguments, there is more than sufficient evidence for the jury to 

have found a willful intent. 

Mr. Gordon testified at trial about why he believed his 

actions were legal. The jury understandably did not choose to 

credit his testimony. Moreover, the jury heard an abundance of 

evidence summarily recounted here that included a demonstration 

that Mr. Gordon continued to copy movies after receiving multiple 

warnings from copyright owners and being under state and federal 

investigation. It was well within the bounds of reason for the 

jury, having weighed Mr. Gordon's contentions against the record,

to find his actions willful.
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B. Loss Calculation

We find it helpful for clarity of analysis to divide the 

defendant's loss calculation contentions into three categories. 

Here we conduct review for plain error.6 Plain error review 

requires us to determine "(1) that an error occurred (2) which was 

clear or obvious and which not only (3) affected the defendant's 

substantial rights, but also (4) seriously impaired the fairness, 

integrity, or public reputation of judicial proceedings." United 

States v. Madsen, 809 F.3d 712, 717 (1st Cir. 2016) (citation and 

internal quotation marks omitted). This is a "heavy burden." 

United States v. Pérez-Rodríguez, 13 F.4th 1, 16 (1st Cir. 2021). 

"Appellate review of federal criminal sentences is characterized 

by a frank recognition of the substantial discretion vested in a 

sentencing court." United States v. Flores-Machicote, 706 F.3d 

16, 20 (1st Cir. 2013).

1. Certificates. Mr. Gordon testified at trial that,

for all movies on his websites, he checked copyright.gov and found 

they were registered for copyright protection. The district court 

had no occasion to explore the validity of the copyrights through 

considerations of certificates at sentencing because Mr. Gordon 

6 The government argues that Mr. Gordon waived his 

guideline claims. Given our disposition of the merits of the 

issues in this case, we need not address the government's waiver 

argument.
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did not raise the certificate issue until appeal.7 The district 

court reasonably relied on Mr. Gordon's testimony to find by a 

preponderance of the evidence that all movies in the calculation 

were copyright-protected. See U.S.S.G. § 6A1.3(a) (allowing for 

flexibility in evidence considered by sentencing judge). 

2. Reasonable Estimation. More broadly, we also see no 

error with respect to the submission of certificates because the 

district court carefully explained why the government's estimates 

were reasonably reliable and why the sales were all part of the 

same course of conduct. The court noted some sales were possibly 

"legitimate" but that any such sales could not have been enough to 

reduce the loss calculation from $638,659.60 to below $550,000,

the threshold for the fourteen-level increase from the base offense 

level. See § 2B1.1 cmt. n. 3(C) ("The [district] court need only 

make a reasonable estimate of the loss."). There was nothing 

unduly speculative in the district court's explanation of loss. 

We see no error in the district judge's loss calculation, even if 

based on copyright infringement alone.

7 We note that we held some fifteen years ago that 

registration evidenced by a certificate is not required to 

establish a criminal copyright violation. Beltran, 503 F.3d at 2 

(holding, in the alternative, that Section 411 of the Copyright 

Act of 1976, codified at 17 U.S.C. "appears to govern only civil 

infringement suits"). We are aware of no developments since then 

that would prompt us to suggest reconsideration of that holding. 
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3. Refunds. Mr. Gordon suggests that the loss 

calculation failed to account for refunds that he sometimes gave 

to dissatisfied customers. The guidelines contain a call for 

leniency where a defendant has returned money received through 

criminal actions. See U.S.S.G. § 2B1.1 cmt. n. 3(E)(i).

The comment in the guidelines that Mr. Gordon cites says 

that a loss calculation "shall be reduced by" the sum of: 

The money returned, and the fair market value of the 

property returned and the services rendered, by the 

defendant or other persons acting jointly with the 

defendant, to the victim before the offense was 

detected. The time of detection of the offense is the 

earlier of (I) the time the offense was discovered by a 

victim or government agency; or (II) the time the 

defendant knew or reasonably should have known that the 

offense was detected or about to be detected by a victim 

or government agency.

U.S.S.G. § 2B1.1 cmt. n. 3(E)(i) (emphasis added).

This comment makes plain that Mr. Gordon's argument goes 

nowhere. The loss calculation only included sales from after 

January 21, 2014, the beginning of the period of the criminal 

activity specified in the superseding indictment. Mr. Gordon can 

only claim the benefit of refunds he gave before the point at which 

his offenses were detected, a point defined as when either the 

government or a victim detected the offenses or when a defendant 

"knew or reasonably should have known the offense[s] were detected"

– whichever was earlier. Id.; United States v. Maisonet-González, 

785 F.3d 757, 763 (1st Cir. 2015).
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It was indisputably known to Mr. Gordon that his offenses 

had been detected by August 2012 — over a year before the time 

covered by the loss calculation — when the Maine Attorney General's 

Office sent him a demand letter. At that point, customers who 

would qualify as victims had already complained — hence the state 

investigation — and the Maine Attorney General had reason to 

believe he was violating the law — hence the notice in the demand

letter. The demand letter put Mr. Gordon himself on notice that 

the offenses had been detected. Refunds made after that date are 

not entitled to leniency. We see no merit then to Mr. Gordon's 

contention that the loss calculation failed to account for any 

relevant refunds.

III. CONCLUSION

Because we find Mr. Gordon's arguments on appeal 

unavailing, we affirm the judgment of the district court.