                                                                        [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JULY 16, 2008
                               No. 07-13808                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 06-00311-CR-01-ODE-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JUSTIN E. HARRISON,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                (July 16, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Justin E. Harrison challenges his convictions and sentences
imposed after he pled guilty to two counts of trafficking in illicit labels, in

violation of 18 U.S.C. § 2318. Specifically, Harrison was convicted of selling

Microsoft labels, called certificates of authenticity (“COAs”), that Microsoft

packages with software to ensure that a particular copy of Microsoft’s product is

authentic. Each COA contains a 25-digit alphanumeric key that can be used to

activate a Microsoft program. Harrison obtained stand-alone COAs from various

sources and sold them to others, presumably allowing those others to activate

pirated copies of Microsoft’s programs.

                                                I.

       On appeal, Harrison argues that the first-sale doctrine 1 is applicable to a

prosecution under 18 U.S.C. § 2318, and that the district court erred in granting the

Government’s motion in limine to preclude him from raising the doctrine as a

defense.2 After reviewing the record and reading the parties’ briefs, we affirm

       1
         The first-sale doctrine limits a copyright holder’s exclusive right to distribute its
copyrighted material. 17 U.S.C. § 109(a). If a person owns an individual copy of a copyrighted
work, that person has authority “to sell or otherwise dispose of the possession of that copy or
phonorecord” without interference by the copyright owner. Id. In short, a person does not
violate copyright law by distributing copies of copyrighted works when he owns those copies.
       2
          Harrison’s arguments that the first-sale doctrine is relevant to the elements of an 18
U.S.C. § 2318 prosecution, such that even absent an affirmative defense to the crime it was error
for the district court to exclude all first-sale evidence and argument, are rejected. In no way
would the first-sale doctrine be relevant to whether the COAs are “illicit labels”—a term of art
expressly defined in the statute, 18 U.S.C. § 2318(b)(4)—or whether Microsoft used the COAs
solely for copyright verification. Furthermore, despite Harrison’s contentions in his brief, it is
far from clear that “illicit labels” are only those used solely for copyright verification. See 18
U.S.C. § 2318(b)(4)(A) (noting that an illicit label is one that is “used by the copyright owner to

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Harrison’s convictions and sentences.3

                                                 II.

       Normally, we review a district court’s grant of a motion in limine for an

abuse of discretion. United States v. Thompson, 25 F.3d 1558, 1563 (11th Cir.

1994). However, we review a district court’s determination of whether a certain

defense is available de novo. See id.

                                                III.

       Federal law criminalizes trafficking in “illicit label[s] affixed to, enclosing,

or accompanying, or designed to be affixed to, enclose, or accompany . . . a copy

of a computer program.” 18 U.S.C. § 2318(a)(1)(B). An “illicit label” is a

“genuine certificate, licensing document, registration card, or similar labeling

component,” that meets two criteria. Id. at § 2318(b)(4). First, the component

must be “used by the copyright owner to verify that a [copy of a work] is not

counterfeit or infringing of any copyright.” Id. at § 2318(b)(4)(A). Second, the

component must either be “distributed or intended for distribution not in



verify that a [copy of a work] is not counterfeit or infringing of any copyright”).
       3
         With respect to his sentences, Harrison argues that the district court erred by enhancing
his offense level at sentencing by four levels under U.S.S.G. § 3B1.1(a) based on his role in the
offense. He argues that the government failed to meet its burden to prove that the enterprise
involved five or more criminally responsible participants, as defined in U.S.S.G. § 3B1.1,
comment. He also argues that the district court abused its discretion by improperly calculating
his guideline range. We find no merit to these arguments.

                                                  3
connection with the copy . . . to which such labeling component was intended to be

affixed by the respective copyright owner,” id. at § 2318(b)(4)(B)(1), or be

“knowingly falsified in order to designate a higher number of licensed users or

copies than authorized by the copyright owner,” id. at § 2318(b)(4)(B)(2), without

the copyright owner’s authorization.

      By pleading guilty, Harrison admitted that he trafficked in Microsoft COAs,

that those COAs were “illicit labels” as defined in § 2318(b)(4), and that the COAs

were “designed to . . . accompany . . . a copy of a computer program.” 18 U.S.C. §

2318(a)(1)(B). The only issue on appeal is whether, despite those admissions,

Harrison was entitled to raise an affirmative defense based on the first-sale

doctrine. He essentially wished to argue that because he legitimately owned the

COAs it did not violate federal law to distribute those COAs.

      We hold that the first-sale doctrine is not available to an 18 U.S.C. § 2318

defendant. Though the criminal and civil penalties associated with the statutory

scheme provide additional protection to copyrighted works, the statute defines a

distinct crime; Harrison was not charged with copyright infringement. Congress

could have easily incorporated the first-sale defense into § 2318, but chose not to.

Nor would Congress choose to, for allowing a first-sale defense to a § 2318

prosecution would swallow the statutory scheme in its entirety. The statute targets



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the secondary market in authenticating labels; the first-sale doctrine eliminates

restrictions on secondary markets. Therefore, to allow a first-sale defense would

be to allow precisely the secondary market Congress intended to eliminate.

                                         IV.

      For the foregoing reasons, we conclude that the district court did not err

when it granted the Government’s motion in limine precluding Harrison from

raising the first-sale doctrine as a defense to § 2318. Accordingly, we affirm

Harrison’s convictions and sentences.

      AFFIRMED.




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