Appeal challenging legality of restitution order is outside scope of defendant’s otherwise valid appeal waiver

APPEAL/RESTITUTION United States v. Hudson, No. 06-6199, ___ F.3d ___ (10th Cir. Apr. 17, 2007)(W.D. Oklahoma). Appeal of restitution order imposed on conviction for conspiracy to infringe software copyright in violation of 17 U.S.C. § 506(a)(1) and 18 U.S.C. §§ 371 and 2319(b)(1). HELD: (1) Appeal challenging legality of restitution order is outside scope of defendant’s otherwise valid appeal waiver. Restitution order not authorized by statute is no less illegal than sentence of imprisonment that exceeds statutory maximum. (2) District court erred by entering restitution order. Customer’s agreement to purchase 537 copies of counterfeit software at total price of $86,000 failed to show that customer would have agreed to purchase same number of copies from copyright holder for more than $321,000 at retail price. Similarly, customer’s refusal to pay for software prevented defendant from deriving any personal gain from sale, and because all copies of infringing software were quickly seized from customer by government, copyright holder’s ability to sell genuine software to customer was in no way affected by defendant’s actions. Therefore, copyright holder suffered no actual loss. Accordingly, government’s assertion that defendant’s actions deprived copyright holder of potential sales is not supported by record and order of restitution is nothing but windfall for copyright holder. Read the opinion here.