BILL NUMBER: SB 1506	CHAPTERED
	BILL TEXT

	CHAPTER  617
	FILED WITH SECRETARY OF STATE  SEPTEMBER 21, 2004
	APPROVED BY GOVERNOR  SEPTEMBER 21, 2004
	PASSED THE SENATE  AUGUST 23, 2004
	PASSED THE ASSEMBLY  AUGUST 17, 2004
	AMENDED IN ASSEMBLY  JULY 23, 2004
	AMENDED IN ASSEMBLY  JUNE 29, 2004
	AMENDED IN SENATE  MAY 4, 2004
	AMENDED IN SENATE  APRIL 26, 2004
	AMENDED IN SENATE  APRIL 12, 2004

INTRODUCED BY   Senators Murray and Brulte
   (Principal coauthors:  Assembly Members Chavez and McCarthy)

                        FEBRUARY 19, 2004

   An act to add and repeal Section 653aa of the Penal Code, relating
to Internet piracy.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1506, Murray.  Internet piracy.
   Existing federal law, through copyright, provides authors of
original works of authorship, as defined, with certain rights and
protections.  Existing federal law generally gives the owner of the
copyright the right to reproduce the work in copies or phonorecords
and the right to distribute copies or phonorecords of the work to the
public.  Existing federal law limits the liability of an Internet
service provider for copyright infringement for transmitting material
under specified conditions.  Existing law also provides for the
forfeiture and destruction of articles upon which sounds or images
can be stored, and electronic and other devices used in reproducing
those articles, in connection with a violation of provisions
prohibiting misappropriation of recorded music, sounds of a live
performance, or an audiovisual works, as specified.
   This bill would provide that it is a crime, punishable by a fine
not exceeding $2,500, imprisonment in a county jail for a period not
exceeding one year, or by both that fine and imprisonment for a
person who is located in California, who knows that a particular
recording or audiovisual work is commercial, to knowingly
electronically disseminate all or substantially all of that
commercial recording or audiovisual work to more than 10 other people
without disclosing his or her e-mail address, and the title of the
recording or audiovisual work.  This bill would provide that a minor
who violates these provisions is punishable by a fine not exceeding
$250 for a first or 2nd offense and by a fine not exceeding $1,000,
imprisonment in a county jail, or by both that fine and imprisonment
for a 3rd or subsequent violation. This bill would define electronic
dissemination as initiating a transmission of, making available, or
otherwise offering a commercial recording or audiovisual work for
distribution on the Internet or other digital network, as specified.
This bill would provide that these provisions would not apply to a
person who electronically disseminates a commercial recording to his
or her immediate family or within his or her personal network, as
defined, to a situation in which the copyright owner has explicitly
given permission for or licensed the recording or audiovisual work to
be freely disseminated, electronically disseminated, or disseminated
by means of a cable television service.  This bill would also
provide that an Internet service provider does not violate or aid and
abet a violation of these provisions, as specified.  This bill would
also provide that a court shall order the deletion or destruction of
  any electronic file containing a commercial recording or
audiovisual work, the dissemination of which was the basis of the
violation.
   Because this bill would create a new crime, it would impose a
state-mandated local program.
   This bill would provide that its provisions would become
inoperative on January 1, 2010, unless a later enacted statute
deletes or extends that date.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 653aa is added to the Penal Code, to read:
   653aa.  (a) Any person, except a minor, who is located in
California, who, knowing that a particular recording or audiovisual
work is commercial, knowingly electronically disseminates all or
substantially all of that commercial recording or audiovisual work to
more than 10 other people without disclosing his or her e-mail
address, and the title of the recording or audiovisual work is
punishable by a fine not exceeding two thousand five hundred dollars
($2,500), imprisonment in a county jail for a period not exceeding
one year, or by both that fine and imprisonment.
   (b) Any minor who violates subdivision (a) is punishable by a fine
not exceeding two hundred fifty dollars ($250).  Any minor who
commits a third or subsequent violation of subdivision (a) is
punishable by a fine not exceeding one thousand dollars ($1,000),
imprisonment in a county jail for a period not to exceed one year, or
by both that imprisonment and fine.
   (c) Subdivisions (a) and (b) do not apply:
   (1) To a person who electronically disseminates a commercial
recording or audiovisual work to his or her immediate family, or
within his or her personal network, defined as a restricted access
network controlled by and accessible to only that person or people in
his or her immediate household.
   (2) If the copyright owner, or a person acting under the authority
of the copyright owner, of a commercial recording or audiovisual
work has explicitly given permission for all or substantially all of
that recording or audiovisual work to be freely disseminated
electronically by or to anyone without limitation.
   (3) To a person who has been licensed either by the copyright
owner or a person acting under the authority of the copyright owner
to disseminate electronically all or substantially all of a
commercial audiovisual work or recording.
   (4) To the licensed electronic dissemination of a commercial
audiovisual work or recording by means of a cable television service
offered over a cable system or direct to home satellite service as
defined in Title 47 of the United States Code.
   (d) Nothing in this section shall restrict the copyright owner
from disseminating his or her own copyrighted material.
   (e) Upon conviction for a violation of this section, in addition
to the penalty prescribed, the court shall order the permanent
deletion or destruction of any electronic file containing a
commercial recording or audiovisual work, the dissemination of which
was the basis of the violation. This subdivision shall not apply to
the copyright owner or to a person acting under the authority of the
copyright owner.
   (f) An Internet service provider does not violate, and does not
aid and abet a violation of subdivision (a), and subdivision (a)
shall not be enforced against an Internet service provider, to the
extent that the Internet service provider enables a user of its
service to electronically disseminate an audiovisual work or sound
recording, if the Internet service provider maintains its valid
e-mail address or other means of electronic notification on its Web
site in a location that is accessible to the public.
   For the purposes of this section, "Internet service provider"
means an entity, to the extent that the entity is transmitting,
routing, or providing connections for Internet communications
initiated by or at the direction of another person, between or among
points specified by a user, of material placed online by a user,
storing or hosting that material at the direction of a user, or
referring or linking users to that material.
   (g) For purposes of this section:
   (1) "Recording" means the electronic or physical embodiment of any
recorded images, sounds, or images and sounds, but does not include
audiovisual works or sounds accompanying audiovisual works.
   (2) "Audiovisual work" means the electronic or physical embodiment
of motion pictures, television programs, video or computer games, or
other audiovisual presentations that consist of related images that
are intrinsically intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic equipment, or a
computer program, software, or system, as defined in Section 502,
together with accompanying sounds, if any.
   (3) "Commercial recording or audiovisual work" means a recording
or audiovisual work whose copyright owner, or assignee, authorized
agent, or licensee, has made or intends to make available for sale,
rental, or for performance or exhibition to the public under license,
but does not include an excerpt consisting of less than
substantially all of a recording or audiovisual work.  A recording or
audiovisual work may be commercial regardless of whether the person
who electronically disseminates it seeks commercial advantage or
private financial gain from that dissemination.
   (4) "Electronic dissemination" means initiating a transmission of,
making available, or otherwise offering, a commercial recording or
audiovisual work for distribution on the Internet or other digital
network, regardless of whether someone else had previously
electronically disseminated the same commercial recording or
audiovisual work.
   (5) "E-mail address" means a valid e-mail address, or the valid
e-mail address of the holder of the account from which the
dissemination took place.
   (6) "Disclosing" means providing information in, attached to, or
discernable or available in or through the process of disseminating
or obtaining a commercial recording or audiovisual work in a manner
that is accessible by any person engaged in disseminating or
receiving the commercial recording or audiovisual work.
   (h) Nothing in this section shall preclude prosecution under any
other provision of law.
   (i) This section shall become inoperative on January 1, 2010,
unless a later enacted statute deletes or extends that date.
  SEC. 2.  The provisions of this act are severable.  If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.