BILL NUMBER: AB 819 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 15, 2010
AMENDED IN SENATE JUNE 22, 2010
AMENDED IN SENATE JULY 9, 2009
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY MAY 6, 2009
AMENDED IN ASSEMBLY APRIL 15, 2009
INTRODUCED BY Assembly Member Charles Calderon
(Coauthors: Assembly Members Blumenfield, Jones, Lieu, Portantino,
Smyth, and Tran)
FEBRUARY 26, 2009
An act to amend Sections 350, 653h, 653s, 653u, 653w, 653z, 653aa,
and 1202.4 of, and to add Chapter 5.8 (commencing with Section
13849) to Title 6 of Part 4 of, the Penal Code, relating to
intellectual property piracy, and declaring the urgency thereof, to
take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 819, as amended, Charles Calderon. Intellectual property
piracy.
Existing law makes it a crime for a person to willfully
manufacture, intentionally sell, or knowingly possess for sale any
counterfeit mark registered with the Secretary of State or registered
on the Principal Register of the United States Patent and Trademark
Office. Existing law imposes specified imprisonment and fines based
upon the number of counterfeit marks involved in the offense and if
the person is an individual or a business entity. Existing law also
specifies certain imprisonment and fines for a subsequent conviction
of this offense and provides other specified penalties if the conduct
that was the basis of the conviction has directly and foreseeably
caused death or great bodily injury to another through reliance on
the counterfeited item for its intended purpose.
This bill would instead make it a crime for a person to willfully
manufacture, sell, use, display, advertise, distribute, transport,
offer for sale, or knowingly possess any goods, services, labels,
patches, fabric, stickers, wrappers, badges, emblems, medallions,
charms, boxes, containers, cans, cases, hangtags, documentation, or
packaging or any other component of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any goods or services bearing, or identified by, a
counterfeit mark registered with the Secretary of State or any other
state or registered on the Principal Register of the United States
Patent and Trademark Office. The bill would delete the punishment for
this offense based upon the number of counterfeit marks involved in
the offense, would increase the various fines for a first conviction
and a 2nd or subsequent conviction, as specified, and would increase
the fine, as specified, for a conviction where the conduct caused
death or great bodily injury. By changing the definition of a crime
the bill would impose a state-mandated local program.
Existing law makes it a crime for a person to knowingly and
willfully transfer or cause to be transferred any sounds that have
been recorded on a phonograph record, disc, wire, tape, film, or
other article on which sounds are recorded, with intent to sell or
cause to be sold, or to use or cause to be used for commercial
advantage or private financial gain through public performance, the
article on which the sounds are so transferred, without the consent
of the owner. Existing law specifies certain penalties for a
violation of these provisions, and certain other provisions regarding
the transportation of an article with the knowledge that the sounds
thereon have been so transferred without the consent of the owner, if
the offense involves the transfer or transportation, or conduct
causing that transfer or transportation, of not less than 1,000 of
the articles. Existing law also specifies certain other penalties for
any other violation of these provisions and for a 2nd or subsequent
conviction.
This bill would also make these crimes applicable to the transfer
or transportation of unauthorized recorded audiovisual work, as
defined. The bill would revise the fines imposed for a violation of
these provisions based on the number of recordings or audiovisual
works involved in the offense and would increase the fines for any
other violation of these provisions and for a 2nd or subsequent
conviction, as specified. The bill would also make these same penalty
provisions applicable to the offense of selling or reselling an
article with knowledge that the sounds or audiovisual work has been
transferred without the consent of the owner. By changing the
definition of a crime the bill would impose a state-mandated local
program.
Existing law makes it a crime for any person to transport or cause
to be transported for monetary or other consideration within the
state, any article containing sounds of a live performance with the
knowledge that the sounds thereon have been recorded or mastered
without the consent of the owner of the sounds of the live
performance. Existing law specifies certain penalties for a violation
of these provisions if the offense involves transporting or causing
to be transported not less than 1,000 articles. Existing law also
specifies certain other penalties for any other violation of these
provisions and for a 2nd or subsequent conviction.
This bill would also make this crime applicable to the
transportation of unauthorized audiovisual work, as defined,
containing sounds of a live performance. The bill would revise the
fines imposed for a violation of these provisions based on the number
of articles or audiovisual works involved in the offense and would
increase the fines for any other violation of these provisions and
for a 2nd or subsequent conviction, as specified. The bill would also
make these same penalty provisions applicable to the offense of
selling or reselling an article containing sounds of a live
performance with knowledge that the sounds have been recorded or
mastered without the consent of the owner. By changing the definition
of a crime the bill would impose a state-mandated local program.
Existing law makes it a crime for any person to record or master
or cause to be recorded or mastered on any article, with the intent
to sell for commercial advantage or private financial gain, the
sounds of a live performance with the knowledge that the sounds
thereon have been recorded or mastered without the consent of the
owner of the sounds of the live performance. Existing law specifies
certain penalties for a violation of these provisions if the offense
involves the recording, mastering, or causing the recording or
mastering of at least 1,000 articles. Existing law also specifies
certain other penalties for any other violation of these provisions
and for a 2nd or subsequent conviction.
This bill would also make this crime applicable to the
unauthorized recording or mastering on an audiovisual work, as
defined, of the sounds of a live performance. The bill would revise
the fines imposed for a violation of these provisions based on the
number of articles or audiovisual works involved in the offense and
would increase the fines for any other violation of these provisions
and for a 2nd or subsequent conviction, as specified. By changing the
definition of a crime the bill would impose a state-mandated local
program.
Existing law provides that a person is guilty of failure to
disclose the origin of a recording or audiovisual work if, for
commercial advantage or private financial gain, he or she knowingly
advertises, sells, rents, manufactures, or possesses for those
purposes, a recording or audiovisual work that does not disclose the
name of the manufacturer, author, artist, performer, or producer, as
specified. Failure to disclose the origin of a recording or
audiovisual work is punishable by imprisonment in a county jail,
imprisonment in the state prison, or a fine, or by both imprisonment
and a fine, as specified, depending on the number of articles of
audio recordings or audiovisual works involved, and whether the
offense is a first offense, or 2nd or subsequent offense.
This bill would delete the element of commercial advantage or
private financial gain from that crime, would include within that
crime the distribution, including electronic dissemination, of the
recording or audiovisual work, and would expand on the definition of
recording to include memory cards, flash drives, hard drives, and
data storage devices. The bill would also revise the fines imposed
for violations based on the number of recordings or audiovisual works
involved in the offense, as specified, and would impose
corresponding penalties, as specified, for a 2nd or subsequent
conviction. The bill would increase the fines for any other violation
of these provisions and for a corresponding 2nd or subsequent
conviction, as specified. By changing the definition of a crime the
bill would impose a state-mandated local program.
Existing law provides that every person who operates a recording
device in a motion picture theater while a motion picture is being
exhibited, for the purpose of recording a theatrical motion picture
and without the express written authority of the owner of the motion
picture theater, is guilty of a public offense and shall be punished
by imprisonment in a county jail not exceeding one year, by a fine
not exceeding $2,500, or by both that fine and imprisonment.
This bill would increase the maximum fine to $25,000. The bill
would also impose a fine of $50,000 for a 2nd offense and $100,000
for a 3rd or subsequent offense.
This bill would double the fines that may be imposed for a
violation of any of the above provisions.
Statutory law that became inoperative on January 1, 2010, provided
that it was 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 located in
California who knew that a particular recording or audiovisual work
was 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. That
statutory law also provided that a minor who violated these
provisions was 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 again make operative those provisions and
, with respect to that crime not involving a minor, increase the
maximum fine to $25,000. This bill would impose a maximum fine of
$50,000 for a 2nd offense and a maximum fine of $100,000 for a 3rd or
subsequent conviction. For a minor who violates these provisions,
the bill would increase the maximum fine to $500 for a first or 2nd
offense and, for a 3rd or subsequent offense, would increase the
maximum fine to $2,000 would double the fines that may
be imposed for a violation of those provisions . By creating a
new crime, the bill would impose a state-mandated local program.
Existing law provides that, in addition to any other penalty or
fine, a court shall order any person who has been convicted of any
violation of certain provisions of law relating to the transfer or
transportation of misappropriated recorded music, the transportation
of an article containing unauthorized recordation of sounds of live
performances, the unauthorized recording of sounds of live
performances, or the failure to disclose the origin of a recording or
audiovisual work to make restitution to the owner or lawful
producer, or trade association acting on behalf of the owner or
lawful producer, of the phonograph record, disc, wire, tape, film, or
other device or article from which the sound or visual images were
derived that suffered economic loss resulting from the violation.
Existing law provides how value is to be determined for the purpose
of calculating restitution.
This bill would also require a court to order restitution when the
person has been convicted of violating certain other provisions of
law relating to the manufacture or sale of a counterfeit registered
mark and the electronic transmission of all or substantially all of a
commercial recording or audiovisual work. The bill would
require the order of restitution to include either proven economic
loss incurred from lost profits or no less than 5 times the aggregate
value of each nonconforming article or device, in the case of an
unreleased audio work or an audiovisual work that has not been made
available for sale to the general public.
Existing law establishes various crime prevention and prosecution
programs.
This bill would create, within the Department of Justice, the
Division of Organized Crime and Intellectual Piracy (DOCIP) to
investigate and prosecute organized crime in connection with crimes
of intellectual property theft, with emphasis on intellectual
property theft within the motion picture industry. The bill would
require the DOCIP to submit a report to the Legislature with
information on disbursements from the Intellectual Property Piracy
Prevention and Prosecution Fund.
The bill would establish the Intellectual Property Piracy
Prevention and Prosecution Fund to provide funding for costs incurred
by local law enforcement agencies that provide assistance to the
DOCIP, as specified.
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.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 350 of the Penal Code is
amended to read:
350. (a) Any person who willfully manufactures, sells, uses,
displays, advertises, distributes, transports, offers for sale, or
knowingly possesses any goods, services, labels, patches, fabric,
stickers, wrappers, badges, emblems, medallions, charms, boxes,
containers, cans, cases, hangtags, documentation, or packaging or any
other component of any type or nature that are designed, marketed,
or otherwise intended to be used on or in connection with any goods
or services bearing, or identified by, a counterfeit mark registered
with the Secretary of State or any other state or registered on the
Principal Register of the United States Patent and Trademark Office,
shall, upon conviction, be punishable as follows:
(1) If the person is an individual, he or she shall be punished by
a fine of not more than two million dollars ($2,000,000), or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment; or, if the person is a business entity,
by a fine of not more than five million dollars ($5,000,000).
(2) Upon a second or subsequent conviction, if the person is an
individual, he or she shall be punished by imprisonment in a county
jail not to exceed one year, or in the state prison for 16 months, or
two or three years, or by a fine not to exceed five million dollars
($5,000,000), or by both that imprisonment and fine; or, if the
person is a business entity, by a fine not to exceed fifteen million
dollars ($15,000,000).
(b) Any person who has been convicted of a violation of
subdivision (a) and who, by virtue of the conduct that was the basis
of the conviction, has directly and foreseeably caused death or great
bodily injury to another through reliance on the counterfeited item
for its intended purpose shall, if the person is an individual, be
punished by a fine of not more than five million dollars
($5,000,000), or by imprisonment in the state prison for two, three,
or four years, or by both that fine and imprisonment; or, if the
person is a business entity, by a fine of not more than fifteen
million dollars ($15,000,000).
(c) (1) Except as provided in paragraph (2), in any action brought
under this section resulting in a conviction or a plea of nolo
contendere, the court shall order the forfeiture and destruction of
all of those marks and of all goods, articles, or other matter
bearing the marks, and the forfeiture and destruction or other
disposition of all means of making the marks, and any and all
electrical, mechanical, or other devices for manufacturing,
reproducing, transporting, or assembling these marks, that were used
in connection with, or were part of, any violation of this section.
(2) Upon request of any law enforcement agency and consent from
the specific registrants, the court may consider a motion to have the
items described in paragraph (1), not including recordings or
audiovisual works as defined in Section 653w, donated to a nonprofit
organization for the purpose of distributing the goods to persons
living in poverty at no charge to the persons served by the
organization.
(3) Forfeiture of the proceeds of the crime shall be subject to
Chapter 9 (commencing with Section 186) of Title 7 of Part 1.
However, no vehicle shall be forfeited under this section that may be
lawfully driven on the highway with a class 3 or 4 license, as
prescribed in Section 12804 of the Vehicle Code, and that is any of
the following:
(A) A community property asset of a person other than the
defendant.
(B) The sole class 3 or 4 vehicle available to the immediate
family of that person or of the defendant.
(C) Reasonably necessary to be retained by the defendant for the
purpose of lawfully earning a living, or for any other reasonable and
lawful purpose.
(d) For the purposes of this section, the following definitions
shall apply:
(1) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the number of "articles" shall be equivalent to the number
of completed computer software packages that could have been made
from those components.
(2) "Business entity" includes, but is not limited to, a
corporation, limited liability company, or partnership. "Business
entity" does not include a sole proprietorship.
(3) "Counterfeit mark" means a spurious mark that is identical
with, or confusingly similar to, a registered mark and is used, or
intended to be used, on or in connection with the same type of goods
or services for which the genuine mark is registered. It is not
necessary for the mark to be displayed on the outside of an article
for there to be a violation. For articles containing digitally stored
information, it shall be sufficient to constitute a violation if the
counterfeit mark appears on a video display when the information is
retrieved from the article. The term "spurious mark" includes genuine
marks used on or in connection with spurious articles and includes
identical articles containing identical marks, where the goods or
marks were reproduced without authorization of, or in excess of any
authorization granted by, the registrant. When counterfeited but
unassembled components of any articles described under subdivision
(a) are recovered, including, but not limited to, labels, patches,
fabric, stickers, wrappers, badges, emblems, medallions, charms,
boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
number of "articles" shall be equivalent to the number of completed
articles that could have been made from those components.
(4) "Knowingly possess" means that the person possessing an
article knew or had reason to believe that it was spurious, or that
it was used on or in connection with spurious articles, or that it
was reproduced without authorization of, or in excess of any
authorization granted by, the registrant.
(5) Notwithstanding Section 7, "person" includes, but is not
limited to, a business entity.
(6) "Registrant" means any person to whom the registration of a
mark is issued and that person's legal representatives, successors,
or assigns.
(7) "Sale" includes resale.
(8) "Value" has the following meanings:
(A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
(B) When counterfeited but unassembled components of computer
software packages or any other articles described under subdivision
(a) are recovered, including, but not limited to, counterfeited
digital disks, instruction manuals, licensing envelopes, labels,
patches, fabric, stickers, wrappers, badges, emblems, medallions,
charms, boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
"value" of those components shall be equivalent to the retail price
or fair market value of the number of completed computer software
packages or other completed articles described under subdivision (a)
that could have been made from those components.
(C) "Retail or fair market value" of a counterfeit article means a
value equivalent to the retail price or fair market value, as of the
last day of the charged crime, of a completed similar genuine
article containing a genuine mark.
(e) This section shall not be enforced against any party who has
adopted and lawfully used the same or confusingly similar mark in the
rendition of like services or the manufacture or sale of like goods
in this state from a date prior to the earliest effective date of
registration of the service mark or trademark either with the
Secretary of State or any other state, or on the Principal Register
of the United States Patent and Trademark Office.
(f) An owner, officer, employee, or agent who provides, rents,
leases, licenses, or sells real property upon which a violation of
subdivision (a) occurs shall not be subject to a criminal penalty
pursuant to this section, unless he or she sells, or possesses for
sale, articles bearing a counterfeit mark in violation of this
section. This subdivision shall not be construed to abrogate or limit
any civil rights or remedies for a trademark violation.
(g) This section shall not be enforced against any party who
engages in fair uses of a mark, as specified in Section 14247 of the
Business and Professions Code.
(h) When a person is convicted of an offense under this section,
the court shall order the person to pay restitution to the trademark
owner and any other victim of the offense pursuant to Section 1202.4.
SEC. 2. Section 653h of the Penal Code is
amended to read:
653h. (a) Every person is guilty of a public offense punishable
as provided in subdivisions (b), (c), and (d), who:
(1) Knowingly and willfully transfers or causes to be transferred
any sounds or audiovisual work that have been recorded on a
phonograph record, disc, wire, tape, film, or other article on which
sounds are recorded, with intent to sell or cause to be sold, or to
use or cause to be used for commercial advantage or private financial
gain through public performance, the article on which the sounds are
so transferred, without the consent of the owner.
(2) Transports for monetary or like consideration within this
state or causes to be transported within this state any such article
with the knowledge that the sounds or audiovisual work thereon have
been so transferred without the consent of the owner.
(3) Offers for sale or resale, or sells or resells, or causes the
sale or resale of, or rents, or possesses for these purposes, any
article described in paragraph (1) with the knowledge that the sounds
or audiovisual work thereon have been transferred onto that article
without the consent of the owner.
(b) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by a fine not to exceed one hundred fifty
thousand dollars ($150,000), or by both that imprisonment and fine,
if the offense involves at least 100, but less than 1,000, recordings
or at least seven, but less than 65, audiovisual works.
(c) Any person who has been convicted of a violation of
subdivision (a), shall be punished by imprisonment in the county jail
not to exceed one year, by imprisonment in the state prison for two,
three, or five years, or by a fine not to exceed two hundred fifty
thousand dollars ($250,000), or by both that imprisonment and fine,
if the offense involves the transfer or transportation, or conduct
causing that transfer or transportation, of not less than 1,000
recordings or of at least 65 audiovisual works as described in
subdivision (a).
(d) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (b) or (c), shall be
punished by imprisonment in the county jail not to exceed one year,
or by a fine of not more than twenty-five thousand dollars ($25,000),
or by both that imprisonment and fine. A second or subsequent
conviction under subdivision (a) not described in subdivision (b) or
(c) shall be punished by imprisonment in the state prison, or by a
fine not to exceed one hundred thousand dollars ($100,000), or by
both that imprisonment and fine.
(e) As used in this section, "person" means any individual,
partnership, partnership's member or employee, corporation, limited
liability company, association or corporation or association
employee, officer or director; "owner" means the person who owns the
original master recording embodied in the master phonograph record,
master disc, master tape, master film, or other article used for
reproducing recorded sounds on phonograph records, discs, tapes,
films, or other articles on which sound is or can be recorded, and
from which the transferred recorded sounds are directly or indirectly
derived; "master recording" means the original fixation of sounds
upon a recording from which copies can be made; and "audiovisual work"
and "recording" shall have the same meaning as in Section 653w.
(f) This section shall neither enlarge nor diminish the right of
parties in private litigation.
(g) This section does not apply to any person engaged in radio or
television broadcasting who transfers, or causes to be transferred,
any such sounds (other than from the sound track of a motion picture)
intended for, or in connection with broadcast transmission or
related uses, or for archival purposes.
(h) This section does not apply to any not-for-profit educational
institution or any federal or state governmental entity, if the
institution or entity has as a primary purpose the advancement of the
public's knowledge and the dissemination of information regarding
America's musical cultural heritage, provided that this purpose is
clearly set forth in the institution's or entity's charter, bylaws,
certificate of incorporation, or similar document, and the
institution or entity has, prior to the transfer, made a good faith
effort to identify and locate the owner or owners of the sound
recordings to be transferred and, provided that the owner or owners
could not be and have not been located. Nothing in this section shall
be construed to relieve an institution or entity of its contractual
or other obligation to compensate the owners of sound recordings to
be transferred. In order to continue the exemption permitted by this
subdivision, the institution or entity shall make continuing efforts
to locate such owners and shall make an annual public notice of the
fact of the transfers in newspapers of general circulation serving
the jurisdictions where the owners were incorporated or doing
business at the time of initial affixations. The institution or
entity shall keep on file a record of the efforts made to locate such
owners for inspection by appropriate governmental agencies.
(i) This section applies only to such articles that were initially
mastered prior to February 15, 1972.
SEC. 3. Section 653s of the Penal Code is
amended to read:
653s. (a) Any person who offers for sale or resale, or sells or
resells, or causes the sale or resale of, or rents, or possesses for
these purposes, or transports or causes to be transported for
monetary or other consideration within this state, any article or
audiovisual work containing sounds of a live performance with the
knowledge that the sounds thereon have been recorded or mastered
without the consent of the owner of the sounds of the live
performance is guilty of a public offense punishable as provided in
subdivision (g), (h), or (i).
(b) As used in this section and Section 653u:
(1) "Live performance" means the recitation, rendering, or playing
of a series of musical, spoken, or other sounds in any audible
sequence thereof.
(2) "Article" means the original disc, wire, tape, film,
phonograph record, or other recording device used to record or master
the sounds of the live performance and any copy or reproduction
thereof which duplicates, in whole or in part, the original.
(3) "Person" means any individual, partnership, partnership member
or employee, corporation, association, or corporation or association
employee, officer, or director, limited liability company, or
limited liability company manager or officer.
(4) "Audiovisual work" shall have the same meaning as in Section
653w.
(c) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.
(d) For purposes of this section, a person who is authorized to
maintain custody and control over business records reflecting the
consent of the owner to the recordation or master recording of a live
performance shall be a proper witness in any proceeding regarding
the issue of consent.
Any witness called pursuant to this section shall be subject to
all rules of evidence relating to the competency of a witness to
testify and the relevance and admissibility of the testimony offered.
(e) This section shall neither enlarge nor diminish the rights and
remedies of parties to a recording or master recording which they
might otherwise possess by law.
(f) This section shall not apply to persons engaged in radio or
television broadcasting or cablecasting who record or fix the sounds
of a live performance for, or in connection with, broadcast or cable
transmission and related uses in educational television or radio
programs, for archival purposes, or for news programs or purposes if
the recordation or master recording is not commercially distributed
independent of the broadcast or cablecast by or through the
broadcasting or cablecasting entity to subscribers or the general
public.
(g) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by a fine not to exceed one hundred fifty
thousand dollars ($150,000), or by both that imprisonment and fine,
if the offense involves at least 100, but less than 1,000, articles
or at least seven, but less than 65, audiovisual works.
(h) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison for
two, three, or five years, or by a fine not to exceed two hundred
fifty thousand dollars ($250,000), or by both that imprisonment and
fine, if the offense involves not less than 1,000 articles or not
less than 65 audiovisual works as described in subdivision (a).
(i) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (g) or (h) shall be
punished by imprisonment in the county jail not to exceed one year,
or by a fine not to exceed twenty-five thousand dollars ($25,000), or
by both that imprisonment and fine. A second or subsequent
conviction under subdivision (a) not described in subdivision (g) or
(h) shall be punished by imprisonment in the county jail not to
exceed one year or in the state prison, or by a fine not to exceed
one hundred thousand dollars ($100,000), or by both that imprisonment
and fine.
SEC. 4. Section 653u of the Penal Code is
amended to read:
653u. (a) Any person who records or masters or causes to be
recorded or mastered on any article or audiovisual work with the
intent to sell for commercial advantage or private financial gain,
the sounds of a live performance with the knowledge that the sounds
thereon have been recorded or mastered without the consent of the
owner of the sounds of the live performance is guilty of a public
offense punishable as provided in subdivisions (d), (e), and (f).
(b) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.
(c) For purposes of this section, a person who is authorized to
maintain custody and control over business records reflecting the
consent of the owner to the recordation or master recording of a live
performance shall be a proper witness in any proceeding regarding
the issue of consent.
Any witness called pursuant to this section shall be subject to
all rules of evidence relating to the competency of a witness to
testify and the relevance and admissibility of the testimony offered.
(d) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by a fine not to exceed one hundred fifty
thousand dollars ($150,000), or by both that imprisonment and fine,
if the offense involves at least 100, but less than 1,000, articles
or at least seven, but less than 65, audiovisual works.
(e) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison for
two, three, or five years, or by a fine not to exceed two hundred
fifty thousand dollars ($250,000), or by both that imprisonment and
fine, if the offense involves the recording, mastering, or causing to
be recorded or mastered of at least 1,000 articles or at least 65
audiovisual works as described in subdivision (a).
(f) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (d) or (e), shall be
punished by imprisonment in the county jail not to exceed one year,
or by a fine not to exceed twenty-five thousand dollars ($25,000), or
by both that imprisonment and fine. A second or subsequent
conviction under subdivision (a) not described in subdivision (d) or
(e) shall be punished by imprisonment in the county jail not to
exceed one year or in the state prison, or by a fine not to exceed
one hundred thousand dollars ($100,000), or by both that imprisonment
and fine.
(g) As used in this section, "article" shall have the same meaning
as in Section 653s and "audiovisual work" shall have the same
meaning as in Section 653w.
SEC. 5. Section 653w of the Penal Code is
amended to read:
653w. (a) A person is guilty of failure to disclose the origin of
a recording or audiovisual work if he or she knowingly advertises or
offers for sale or resale, or sells or resells, or causes the
rental, sale or resale of, or rents, or manufactures, or distributes,
including electronic dissemination, or possesses for these purposes,
any recording or audiovisual work, the cover, box, jacket, or label
of which does not clearly and conspicuously disclose the actual true
name and address of the manufacturer thereof and the name of the
actual author, artist, performer, producer, programmer, or group
thereon. This section does not require the original manufacturer or
authorized licensees of software producers to disclose the
contributing authors or programmers.
As used in this section, "recording" means any tangible medium
upon which information or sounds are recorded or otherwise stored,
including any phonograph record, disc, tape, audio cassette, wire,
film, memory card, flash drive, hard drive, data storage device, or
other medium on which information or sounds are recorded or otherwise
stored, but does not include sounds accompanying a motion picture or
other audiovisual work.
As used in this section, "audiovisual works" are the physical
embodiment of works that consist of related images that are
intrinsically intended to be shown using machines
or devices such as projectors, viewers, or
electronic equipment, together with accompanying sounds, if any,
regardless of the nature of the material objects such as films or
tapes on which the works are embodied.
(b) Any person who has been convicted of a violation of
subdivision (a) shall be punished as follows:
(1) If the offense involves at least 25, but less than 100,
recordings or at least seven, but less than 65, audiovisual works as
described in subdivision (a), the person shall be punished by
imprisonment in a county jail not to exceed one year, or by a fine
not to exceed one hundred fifty thousand dollars ($150,000), or by
both that imprisonment and fine. If the person has a prior conviction
under this paragraph or paragraph (2), the person shall be punished
by imprisonment in a county jail not to exceed one year, or in the
state prison, or by a fine not to exceed two hundred fifty thousand
dollars ($250,000), or by both that imprisonment and fine.
(2) If the offense involves at least 100 recordings or 65
audiovisual works described in subdivision (a), the person shall be
punished by imprisonment in a county jail not to exceed one year, or
by imprisonment in the state prison for two, three, or five years, or
by a fine not to exceed two hundred fifty thousand dollars
($250,000), or by both that imprisonment and fine. If the person has
a prior conviction under this paragraph or paragraph (1), the person
shall be punished by imprisonment in a county jail not to exceed one
year, or in the state prison for two, three, or five years, or by a
fine not to exceed five hundred thousand dollars ($500,000), or by
both that imprisonment and fine.
(3) Any other violation of subdivision (a) not described in
paragraph (1) or (2), shall, upon a first offense, be punished by
imprisonment in a county jail not to exceed one year, or by a fine
not to exceed fifty thousand dollars ($50,000), or by both that
imprisonment and fine.
(4) A second or subsequent conviction under subdivision (a) not
described in paragraph (1) or (2), shall be punished by imprisonment
in a county jail not to exceed one year or in the state prison, or by
a fine not to exceed one hundred thousand dollars ($100,000), or by
both that imprisonment and fine.
SEC. 6. Section 653z of the Penal Code is
amended to read:
653z. (a) Every person who operates a recording device in a
motion picture theater while a motion picture is being exhibited, for
the purpose of recording a theatrical motion picture and without the
express written authority of the owner of the motion picture
theater, is guilty of a public offense and shall be punished by
imprisonment in a county jail not exceeding one year, by a fine not
exceeding twenty-five thousand dollars ($25,000), or by both that
fine and imprisonment.
(b) For a second conviction under subdivision (a), the person
shall be punished by imprisonment in a county jail not exceeding one
year, by a fine not exceeding fifty thousand dollars ($50,000), or by
both that fine and imprisonment.
(c) For a third or subsequent conviction under subdivision (a),
the person shall be punished by imprisonment in a county jail not
exceeding one year, by a fine not exceeding one hundred thousand
dollars ($100,000), or by both that fine and imprisonment.
(d) For the purposes of this section, the following terms have the
following meanings:
(1) "Recording device" means a photographic, digital or video
camera, or other audio or video recording device capable of recording
the sounds and images of a motion picture or any portion of a motion
picture.
(2) "Motion picture theater" means a theater or other premises in
which a motion picture is exhibited.
(e) Nothing in this section shall preclude prosecution under any
other provision of law.
SEC. 7. Section 653aa of the Penal Code is
amended to read:
653aa. (a) (1) 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 twenty-five thousand dollars
($25,000), by imprisonment in a county jail for a period not
exceeding one year, or by both that fine and imprisonment.
(2) For a second conviction under paragraph (1), the person shall
be punished by imprisonment in a county jail not exceeding one year,
by a fine not exceeding fifty thousand dollars ($50,000), or by both
that fine and imprisonment.
(3) For a third or subsequent conviction under paragraph (1), the
person shall be punished by imprisonment in a county jail not
exceeding one year, by a fine not exceeding one hundred thousand
dollars ($100,000), or by both that fine and imprisonment.
(b) Any minor who violates paragraph (1) of subdivision (a) is
punishable by a fine not exceeding five hundred dollars ($500). Any
minor who commits a third or subsequent violation of paragraph (1) of
subdivision (a) is punishable by a fine not exceeding two thousand
dollars ($2,000), by 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 paragraph (1) of subdivision (a), and
paragraph (1) of 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.
SECTION 1. Section 350 of the Penal
Code is amended to read:
350. (a) Any person who willfully manufactures, intentionally
sells, or knowingly possesses for sale any counterfeit mark
registered with the Secretary of State or registered on the Principal
Register of the United States Patent and Trademark Office, shall,
upon conviction, be punishable as follows:
(1) When the offense involves less than 1,000 of the articles
described in this subdivision, with a total retail or fair market
value less than that required for grand theft as defined in Section
487, and if the person is an individual, he or she shall be punished
by a fine of not more than five thousand dollars ($5,000)
ten thousand dollars ($10,000) , or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment; or, if the person is a business entity,
by a fine of not more than one hundred thousand dollars
($100,000) two hundred thousand dollars ($200,000)
.
(2) When the offense involves 1,000 or more of the articles
described in this subdivision, or has a total retail or fair market
value equal to or greater than that required for grand theft as
defined in Section 487, and if the person is an individual, he or she
shall be punished by imprisonment in a county jail not to exceed one
year, or in the state prison for 16 months, or two or three years,
or by a fine not to exceed two hundred fifty thousand
dollars ($250,000) five hundred thousand dollars
($500,000) , or by both that imprisonment and fine; or, if the
person is a business entity, by a fine not to exceed five
hundred thousand dollars ($500,000) one million
dollars ($1,000,000) .
(b) Any person who has been convicted of a violation of either
paragraph (1) or (2) of subdivision (a) shall, upon a subsequent
conviction of paragraph (1) of subdivision (a), if the person is an
individual, be punished by a fine of not more than fifty
thousand dollars ($50,000) one hundred thousand
dollars ($100,000) , or by imprisonment in a county jail for
not more than one year, or in the state prison for 16 months, or two
or three years, or by both that fine and imprisonment; or, if the
person is a business entity, by a fine of not more than two
hundred thousand dollars ($200,000) four hundred
thousand dollars ($400,000) .
(c) Any person who has been convicted of a violation of
subdivision (a) and who, by virtue of the conduct that was the basis
of the conviction, has directly and foreseeably caused death or great
bodily injury to another through reliance on the counterfeited item
for its intended purpose shall, if the person is an individual, be
punished by a fine of not more than fifty thousand dollars
($50,000) one hundred thousand dollars ($100,000)
, or by imprisonment in the state prison for two, three, or
four years, or by both that fine and imprisonment; or, if the person
is a business entity, by a fine of not more than two hundred
thousand dollars ($200,000) four hundred thousand
dollars ($400,000) .
(d) (1) Except as provided in paragraph (2), in any action brought
under this section resulting in a conviction or a plea of nolo
contendere, the court shall order the forfeiture and destruction of
all of those marks and of all goods, articles, or other matter
bearing the marks, and the forfeiture and destruction or other
disposition of all means of making the marks, and any and all
electrical, mechanical, or other devices for manufacturing,
reproducing, transporting, or assembling these marks, that were used
in connection with, or were part of, any violation of this section.
(2) Upon request of any law enforcement agency and consent from
the specific registrants, the court may consider a motion to have the
items described in paragraph (1), not including recordings or
audiovisual works as defined in Section 653w, donated to a nonprofit
organization for the purpose of distributing the goods to persons
living in poverty at no charge to the persons served by the
organization.
(3) Forfeiture of the proceeds of the crime shall be subject to
Chapter 9 (commencing with Section 186) of Title 7 of Part 1.
However, no vehicle shall be forfeited under this section that may be
lawfully driven on the highway with a class 3 or 4 license, as
prescribed in Section 12804 of the Vehicle Code, and that is any of
the following:
(A) A community property asset of a person other than the
defendant.
(B) The sole class 3 or 4 vehicle available to the immediate
family of that person or of the defendant.
(C) Reasonably necessary to be retained by the defendant for the
purpose of lawfully earning a living, or for any other reasonable and
lawful purpose.
(e) For the purposes of this section, the following definitions
shall apply:
(1) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the number of "articles" shall be equivalent to the number
of completed computer software packages that could have been made
from those components.
(2) "Business entity" includes, but is not limited to, a
corporation, limited liability company, or partnership. "Business
entity" does not include a sole proprietorship.
(3) "Counterfeit mark" means a spurious mark that is identical
with, or confusingly similar to, a registered mark and is used, or
intended to be used, on or in connection with the same type of goods
or services for which the genuine mark is registered. It is not
necessary for the mark to be displayed on the outside of an article
for there to be a violation. For articles containing digitally stored
information, it shall be sufficient to constitute a violation if the
counterfeit mark appears on a video display when the information is
retrieved from the article. The term "spurious mark" includes genuine
marks used on or in connection with spurious articles and includes
identical articles containing identical marks, where the goods or
marks were reproduced without authorization of, or in excess of any
authorization granted by, the registrant. When counterfeited but
unassembled components of any articles described under subdivision
(a) are recovered, including, but not limited to, labels, patches,
fabric, stickers, wrappers, badges, emblems, medallions, charms,
boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
number of "articles" shall be equivalent to the number of completed
articles that could have been made from those components.
(4) "Knowingly possess" means that the person possessing an
article knew or had reason to believe that it was spurious, or that
it was used on or in connection with spurious articles, or that it
was reproduced without authorization of, or in excess of any
authorization granted by, the registrant.
(5) Notwithstanding Section 7, "person" includes, but is not
limited to, a business entity.
(6) "Registrant" means any person to whom the registration of a
mark is issued and that person's legal representatives, successors,
or assigns.
(7) "Sale" includes resale.
(8) "Value" has the following meanings:
(A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
(B) When counterfeited but unassembled components of computer
software packages or any other articles described under subdivision
(a) are recovered, including, but not limited to, counterfeited
digital disks, instruction manuals, licensing envelopes, labels,
patches, fabric, stickers, wrappers, badges, emblems, medallions,
charms, boxes, containers, cans, cases, hangtags, documentation, or
packaging, or any other components of any type or nature that are
designed, marketed, or otherwise intended to be used on or in
connection with any articles described under subdivision (a), the
"value" of those components shall be equivalent to the retail price
or fair market value of the number of completed computer software
packages or other completed articles described under subdivision (a)
that could have been made from those components.
(C) "Retail or fair market value" of a counterfeit article means a
value equivalent to the retail price or fair market value, as of the
last day of the charged crime, of a completed similar genuine
article containing a genuine mark.
(f) This section shall not be enforced against any party who has
adopted and lawfully used the same or confusingly similar mark in the
rendition of like services or the manufacture or sale of like goods
in this state from a date prior to the earliest effective date of
registration of the service mark or trademark either with the
Secretary of State or on the Principle Register of the United States
Patent and Trademark Office.
(g) An owner, officer, employee, or agent who provides, rents,
leases, licenses, or sells real property upon which a violation of
subdivision (a) occurs shall not be subject to a criminal penalty
pursuant to this section, unless he or she sells, or possesses for
sale, articles bearing a counterfeit mark in violation of this
section. This subdivision shall not be construed to abrogate or limit
any civil rights or remedies for a trademark violation.
(h) This section shall not be enforced against any party who
engages in fair uses of a mark, as specified in Section 14247 of the
Business and Professions Code.
(i) When a person is convicted of an offense under this section,
the court shall order the person to pay restitution to the trademark
owner and any other victim of the offense pursuant to Section 1202.4.
SEC. 2. Section 653h of the Penal Code
is amended to read:
653h. (a) Every person is guilty of a public offense punishable
as provided in subdivisions (b) and (c), who:
(1) Knowingly and willfully transfers or causes to be transferred
any sounds that have been recorded on a phonograph record, disc,
wire, tape, film or other article on which sounds are recorded, with
intent to sell or cause to be sold, or to use or cause to be used for
commercial advantage or private financial gain through public
performance, the article on which the sounds are so transferred,
without the consent of the owner.
(2) Transports for monetary or like consideration within this
state or causes to be transported within this state any such article
with the knowledge that the sounds thereon have been so transferred
without the consent of the owner.
(b) Any person who has been convicted of a violation of
subdivision (a), shall be punished by imprisonment in the county jail
not to exceed one year, by imprisonment in the state prison for two,
three, or five years, or by a fine not to exceed two
hundred fifty thousand dollars ($250,000) five hundred
thousand dollars ($500,000) , or by both, if the offense
involves the transfer or transportation, or conduct causing that
transfer or transportation, of not less than 1,000 of the articles
described in subdivision (a).
(c) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (b), shall be punished
by imprisonment in the county jail not to exceed one year, or by a
fine of not more than twenty-five thousand dollars ($25,000)
fifty thousand dollars ($50,000) , or by both.
A second or subsequent conviction under subdivision (a) not described
in subdivision (b) shall be punished by imprisonment in the state
prison or by a fine not to exceed one hundred thousand
dollars ($100,000) two hundred thousand dollars
($200,000) , or by both.
(d) Every person who offers for sale or resale, or sells or
resells, or causes the sale or resale, or rents, or possesses for
these purposes, any article described in subdivision (a) with
knowledge that the sounds thereon have been so transferred without
the consent of the owner is guilty of a public offense.
(1) A violation of subdivision (d) involving not less than 100 of
those articles shall be punishable by imprisonment in a county jail
not to exceed one year or by a fine not to exceed ten
thousand dollars ($10,000) twenty thousand dollars
($20,000) , or by both. A second or subsequent conviction for
the conduct described in this paragraph shall be punishable by
imprisonment in the county jail not to exceed one year or in the
state prison, or by a fine not to exceed twenty-five
thousand dollars ($25,000) fifty thousand dollars
($50,000) , or by both.
(2) A person who has been convicted of any violation of this
subdivision not described in paragraph (1) shall be punished by
imprisonment in the county jail not to exceed six months or by a fine
not to exceed five thousand dollars ($5,000)
ten thousand dollars ($10,000) , or by both. A second
conviction for the conduct described in this paragraph shall be
punishable by imprisonment in the county jail not to exceed one year
or by a fine not to exceed ten thousand dollars ($10,000)
twenty thousand dollars ($20,000) , or by both.
A third or subsequent conviction for the conduct described in this
paragraph shall be punishable by imprisonment in the county jail not
to exceed one year or in the state prison, or by a fine not to exceed
twenty-five thousand dollars ($25,000) fifty
thousand dollars ($50,000) , or by both.
(e) As used in this section, "person" means any individual,
partnership, partnership's member or employee, corporation, limited
liability company, association or corporation or association
employee, officer or director; "owner" means the person who owns the
original master recording embodied in the master phonograph record,
master disc, master tape, master film or other article used for
reproducing recorded sounds on phonograph records, discs, tapes,
films or other articles on which sound is or can be recorded, and
from which the transferred recorded sounds are directly or indirectly
derived; and "master recording" means the original fixation of
sounds upon a recording from which copies can be made.
(f) This section shall neither enlarge nor diminish the right of
parties in private litigation.
(g) This section does not apply to any person engaged in radio or
television broadcasting who transfers, or causes to be transferred,
any such sounds (other than from the sound track of a motion picture)
intended for, or in connection with broadcast transmission or
related uses, or for archival purposes.
(h) This section does not apply to any not-for-profit educational
institution or any federal or state governmental entity, if the
institution or entity has as
a primary purpose the advancement of the public's knowledge
and the dissemination of information regarding America's musical
cultural heritage, provided that this purpose is clearly set forth in
the institution's or entity's charter, bylaws, certificate of
incorporation, or similar document, and the institution or entity
has, prior to the transfer, made a good faith effort to identify and
locate the owner or owners of the sound recordings to be transferred
and, provided that the owner or owners could not be and have not been
located. Nothing in this section shall be construed to relieve an
institution or entity of its contractual or other obligation to
compensate the owners of sound recordings to be transferred. In order
to continue the exemption permitted by this subdivision, the
institution or entity shall make continuing efforts to locate such
owners and shall make an annual public notice of the fact of the
transfers in newspapers of general circulation serving the
jurisdictions where the owners were incorporated or doing business at
the time of initial affixations. The institution or entity shall
keep on file a record of the efforts made to locate such owners for
inspection by appropriate governmental agencies.
(i) This section applies only to such articles that were initially
mastered prior to February 15, 1972.
SEC. 3. Section 653s of the Penal Code
is amended to read:
653s. (a) Any person who transports or causes to be transported
for monetary or other consideration within this state, any article
containing sounds of a live performance with the knowledge that the
sounds thereon have been recorded or mastered without the consent of
the owner of the sounds of the live performance is guilty of a public
offense punishable as provided in subdivision (g) or (h).
(b) As used in this section and Section 653u:
(1) "Live performance" means the recitation, rendering, or playing
of a series of musical, spoken, or other sounds in any audible
sequence thereof.
(2) "Article" means the original disc, wire, tape, film,
phonograph record, or other recording device used to record or master
the sounds of the live performance and any copy or reproduction
thereof which duplicates, in whole or in part, the original.
(3) "Person" means any individual, partnership, partnership member
or employee, corporation, association, or corporation or association
employee, officer, or director, limited liability company, or
limited liability company manager or officer.
(c) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.
(d) For purposes of this section, a person who is authorized to
maintain custody and control over business records reflecting the
consent of the owner to the recordation or master recording of a live
performance shall be a proper witness in any proceeding regarding
the issue of consent.
Any witness called pursuant to this section shall be subject to
all rules of evidence relating to the competency of a witness to
testify and the relevance and admissibility of the testimony offered.
(e) This section shall neither enlarge nor diminish the rights and
remedies of parties to a recording or master recording which they
might otherwise possess by law.
(f) This section shall not apply to persons engaged in radio or
television broadcasting or cablecasting who record or fix the sounds
of a live performance for, or in connection with, broadcast or cable
transmission and related uses in educational television or radio
programs, for archival purposes, or for news programs or purposes if
the recordation or master recording is not commercially distributed
independent of the broadcast or cablecast by or through the
broadcasting or cablecasting entity to subscribers or the general
public.
(g) Any person who has been convicted of a violation of
subdivision (a), shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison for
two, three, or five years, or by a fine not to exceed two
hundred fifty thousand dollars ($250,000) five hundred
thousand dollars ($500,000) , or by both, if the offense
involves the transportation or causing to be transported of not less
than 1,000 articles described in subdivision (a).
(h) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (g) shall be punished by
imprisonment in the county jail not to exceed one year, or by a fine
not to exceed twenty-five thousand dollars ($25,000)
fifty thousand dollars ($50,000) , or both. A
second or subsequent conviction under subdivision (a) not described
in subdivision (g) shall be punished by imprisonment in the county
jail not to exceed one year or in the state prison, or by a fine not
to exceed one hundred thousand dollars ($100,000)
two hundred thousand dollars ($200,000) , or by both.
(i) Every person who offers for sale or resale, or sells or
resells, or causes the sale or resale, or rents, or possesses for
these purposes, any article described in subdivision (a) with
knowledge that the sounds thereon have been so recorded or mastered
without the consent of the owner of the sounds of a live performance
is guilty of a public offense.
(1) A violation of subdivision (i) involving not less than 100 of
those articles shall be punishable by imprisonment in a county jail
not to exceed one year or by a fine not to exceed ten
thousand dollars ($10,000) twenty thousand dollars
($20,000) , or by both. A second or subsequent conviction for
the conduct described in this paragraph shall be punishable by
imprisonment in the county jail not to exceed one year or in the
state prison, or by a fine not to exceed twenty-five
thousand dollars ($25,000) fifty thousand dollars
($50,000) , or by both.
(2) A person who has been convicted of any violation of this
subdivision not described in paragraph (1) shall be punished by
imprisonment in the county jail not to exceed six months or by a fine
not to exceed five thousand dollars ($5,000)
ten thousand dollars ($10,000) , or by both. A second
conviction for the conduct described in this paragraph shall be
punishable by imprisonment in the county jail not to exceed one year
or by a fine not to exceed ten thousand dollars ($10,000)
twenty thousand dollars ($20,000) , or by both.
A third or subsequent conviction for the conduct described in this
paragraph shall be punishable by imprisonment in the county jail not
to exceed one year or in the state prison, or by a fine not to exceed
twenty-five thousand dollars ($25,000) fifty
thousand dollars ($50,000) , or by both.
SEC. 4. Section 653u of the Penal Code
is amended to read:
653u. (a) Any person who records or masters or causes to be
recorded or mastered on any article with the intent to sell for
commercial advantage or private financial gain, the sounds of a live
performance with the knowledge that the sounds thereon have been
recorded or mastered without the consent of the owner of the sounds
of the live performance is guilty of a public offense punishable as
provided in subdivisions (d) and (e).
(b) In the absence of a written agreement or operation of law to
the contrary, the performer or performers of the sounds of a live
performance shall be presumed to own the right to record or master
those sounds.
(c) For purposes of this section, a person who is authorized to
maintain custody and control over business records reflecting the
consent of the owner to the recordation or master recording of a live
performance shall be a proper witness in any proceeding regarding
the issue of consent.
Any witness called pursuant to this section shall be subject to
all rules of evidence relating to the competency of a witness to
testify and the relevance and admissibility of the testimony offered.
(d) Any person who has been convicted of a violation of
subdivision (a) shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison for
two, three, or five years, or by a fine not to exceed two
hundred fifty thousand dollars ($250,000) five hundred
thousand dollars ($500,000) , or by both, if the offense
involves the recording, mastering, or causing to be recorded or
mastered at least 1,000 articles described in subdivision (a).
(e) Any person who has been convicted of any other violation of
subdivision (a) not described in subdivision (d), shall be punished
by imprisonment in the county jail not to exceed one year, or by a
fine not to exceed twenty-five thousand dollars ($25,000)
fifty thousand dollars ($50,000) , or by both. A
second or subsequent conviction under subdivision (a) not described
in subdivision (d) shall be punished by imprisonment in the county
jail not to exceed one year or in the state prison or by a fine not
to exceed one hundred thousand dollars ($100,000)
two hundred thousand dollars ($200,000) , or by both.
SEC. 5. Section 653w of the Penal Code
is amended to read:
653w. (a) A person is guilty of failure to disclose the origin of
a recording or audiovisual work if, for commercial advantage or
private financial gain, he or she knowingly advertises or offers for
sale or resale, or sells or resells, or causes the rental, sale or
resale, or rents, or manufactures, or possesses for these purposes,
any recording or audiovisual work, the cover, box, jacket, or label
of which does not clearly and conspicuously disclose the actual true
name and address of the manufacturer thereof and the name of the
actual author, artist, performer, producer, programmer, or group
thereon. This section does not require the original manufacturer or
authorized licensees of software producers to disclose the
contributing authors or programmers.
As used in this section, "recording" means any tangible medium
upon which information or sounds are recorded or otherwise stored,
including any phonograph record, disc, tape, audio cassette, wire,
film, or other medium on which information or sounds are recorded or
otherwise stored, but does not include sounds accompanying a motion
picture or other audiovisual work.
As used in this section, "audiovisual works" are the physical
embodiment of works that consist of related images that are
intrinsically intended to be shown using machines or devices such as
projectors, viewers, or electronic equipment, together with
accompanying sounds, if any, regardless of the nature of the material
objects such as films or tapes on which the works are embodied.
(b) Any person who has been convicted of a violation of
subdivision (a) shall be punished as follows:
(1) If the offense involves the advertisement, offer for sale or
resale, sale, rental, manufacture, or possession for these purposes,
of at least 100 articles of audio recordings or 100 articles of
audiovisual works described in subdivision (a), the person shall be
punished by imprisonment in a county jail not to exceed one year, or
by imprisonment in the state prison for two, three, or five years, or
by a fine not to exceed two hundred fifty thousand dollars
($250,000) five hundred thousand dollars ($500,000)
, or by both.
(2) Any other violation of subdivision (a) not described in
paragraph (1), shall, upon a first offense, be punished by
imprisonment in a county jail not to exceed one year, or by a fine
not to exceed twenty-five thousand dollars ($25,000)
fifty thousand dollars ($50,000) , or by both.
(3) A second or subsequent conviction under subdivision (a) not
described in paragraph (1), shall be punished by imprisonment in a
county jail not to exceed one year or in the state prison, or by a
fine not to exceed one hundred thousand dollars ($100,000)
two hundred thousand dollars ($200,000) , or by
both.
SEC. 6. Section 653z of the Penal Code
is amended to read:
653z. (a) Every person who operates a recording device in a
motion picture theater while a motion picture is being exhibited, for
the purpose of recording a theatrical motion picture and without the
express written authority of the owner of the motion picture
theater, is guilty of a public offense and shall be punished by
imprisonment in a county jail not exceeding one year, by a fine not
exceeding two thousand five hundred dollars ($2,500)
five thousand dollars ($5,000) , or by both that
fine and imprisonment.
(b) For the purposes of this section, the following terms have the
following meanings:
(1) "Recording device" means a photographic, digital or video
camera, or other audio or video recording device capable of recording
the sounds and images of a motion picture or any portion of a motion
picture.
(2) "Motion picture theater" means a theater or other premises in
which a motion picture is exhibited.
(c) Nothing in this section shall preclude prosecution under any
other provision of law.
SEC. 7. Section 653aa of the Penal Code
is amended 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) five thousand dollars ($5,000)
, 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)
five hundred dollars ($500) . Any minor who commits a
third or subsequent violation of subdivision (a) is punishable by a
fine not exceeding one thousand dollars ($1,000)
two thousand dollars ($2,000) , 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. 8. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two hundred-dollar ($200) or one hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on
the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so, and states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for
a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure shall be signed and prepared by the defendant on
the same form as described in paragraph (5). Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty. The
financial disclosure required by this paragraph shall be filed with
the clerk of the court no later than 90 days prior to the defendant's
scheduled release from probation or completion of the defendant's
conditional sentence.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution order, nor shall inability to pay be a consideration in
determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include all of
the following:
(1) The immediate surviving family of the actual victim.
(2) Any corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
(3) Any person who has sustained economic loss as the result of a
crime and who satisfies any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(B) At the time of the crime was living in the household of the
victim.
(C) At the time of the crime was a person who had previously lived
in the household of the victim for a period of not less than two
years in a relationship substantially similar to a relationship
listed in subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim's fiance or fiancee, and who witnessed the
crime.
(E) Is the primary caretaker of a minor victim.
(4) Any person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(5) Any governmental entity that is responsible for repairing,
replacing, or restoring public or privately owned property that has
been defaced with graffiti or other inscribed material, as defined in
subdivision (e) of Section 594, and that has sustained an economic
loss as the result of a violation of Section 594, 594.3, 594.4,
640.5, 640.6, or 640.7 of the Penal Code.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or electronic mail.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in any case in which a
victim has suffered economic loss as a result of the defendant's
conduct. The court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any
other showing to the court. In determining restitution pursuant to
this section, the court shall base its order upon the greater of the
following: the gross value of the victim's labor or services based
upon the comparable value of similar services in the labor market in
which the offense occurred, or the value of the victim's labor as
guaranteed under California law, or the actual income derived by the
defendant from the victim's labor or services or any other
appropriate means to provide reparations to the victim.
(r) (1) In addition to any other penalty or fine, the court shall
order any person who has been convicted of any violation of Section
350, 653h, 653s, 653u, 653w, or 653aa that involves a recording or
audiovisual work to make restitution to any owner or lawful producer,
or trade association acting on behalf of the owner or lawful
producer, of a phonograph record, disc, wire, tape, film, or other
device or article from which sounds or visual images are derived that
suffered economic loss resulting from the violation. For the purpose
of calculating restitution, the value of each nonconforming article
or device shall be based on the aggregate wholesale value of lawfully
manufactured and authorized devices or articles from which
sounds or visual images are devised. In the case of (A) an unreleased
audio work, or (B) an audiovisual work that, at the time of
unauthorized distribution, has not been made available in copies for
sale to the general public in the United States on a digital
versatile disc, the order of restitution shall also include either
proven economic loss incurred from lost profits or no less than five
times the aggregate value of each nonconforming article or device.
The order of restitution shall also include reasonable costs
or articles from which sounds or visual images are
devised, unless a higher value can be proved in the case of (A) an
unreleased audio work, or (B) an audiovisual work that, at the time
of unauthorized distribution, has not been made available in copies
for sale to the general public in the United States on a digital
versatile disc. The order of restitution shall also include
reasonable costs incurred as a result of any investigation of
the violation undertaken by the owner, lawful producer, or trade
association acting on behalf of the owner or lawful producer.
"Aggregate wholesale value" means the average wholesale value of
lawfully manufactured and authorized sound or audiovisual recordings.
Proof of the specific wholesale value of each nonconforming device
or article is not required.
(2) As used in this subdivision, "audiovisual work" and "recording"
shall have the same meaning as in Section 653w.
SEC. 9. Chapter 5.8 (commencing with Section 13849) is added to
Title 6 of Part 4 of the Penal Code, to read:
CHAPTER 5.8. INTELLECTUAL PROPERTY PIRACY PREVENTION AND
PROSECUTION ACT OF 2010
13849. (a) This act shall be known and may be cited as the
Intellectual Property Piracy Prevention and Prosecution Act of 2010.
(b) The Legislature finds and declares the following:
(1) According to a 2007 study by the Institute for Policy
Innovation, intellectual property piracy, meaning the theft of
movies, music, software, and video games, costs the United States
economy fifty-eight billion dollars ($58,000,000,000) each year.
(2) The problem of intellectual property piracy continues to grow
worse. A 2005 Gallup study found that 5 percent of Americans had
purchased, copied, or downloaded counterfeit music in the preceding
year. By 2007, this number had jumped to 9 percent. The percentage of
respondents that admitted buying a pirated movie rose from 3 percent
in 2005, to 6 percent in 2007. At the same time, once robust DVD
sales have flattened over the past few years, while CD shipments to
retailers have plummeted.
(3) The effect of intellectual property piracy on California and
its citizens is particularly dire. Intellectual property piracy
adversely affects the California economy, eliminates jobs, and
damages industry. According to the Business Software Alliance, in
2003, software piracy alone cost the California economy more than
13,000 jobs, over eight hundred two million dollars ($802,000,000) in
wages and salaries, over one billion dollars ($1,000,000,000) in
retail sales of business software applications, and roughly two
hundred thirty-nine million dollars ($239,000,000) in total tax
losses.
(4) Intellectual property piracy poses a significant threat to
consumers, who, through no fault of their own, are often deceived or
deliberately misled, or both deceived and deliberately misled, as to
the nature of purchased products, whereby pirated goods are palmed
off, including in electronic form, as legitimate authorized goods.
(5) A growing number of criminal organizations worldwide are
involved in intellectual property piracy.
(6) This act will send a strong signal that California is
committed to protecting the intellectual property created by
California's innovation and entertainment industries.
(7) Funds provided pursuant to this act will be used to foster
innovation and to provide local law enforcement and prosecutors the
tools they need to effectively fight intellectual property piracy.
(8) Finally, by safeguarding the legitimate sale of intellectual
property, California will increase its tax base, and stimulate the
economy.
(c) Funds provided pursuant to this act are intended to ensure
that law enforcement and prosecutors are equipped with the necessary
personnel and equipment to combat successfully intellectual property
piracy, which includes piracy of movies, music, software, and video
games.
13849.1. (a) There is hereby created, within the Bureau of
Investigation and Intelligence of the Department of Justice, the
Division of Organized Crime and Intellectual Piracy (DOCIP) to
investigate and prosecute organized crime in connection with crimes
involving intellectual property theft, with an emphasis on
intellectual property theft within the motion picture industry.
(b) The DOCIP shall prepare and submit to the Legislature an
annual report with information on the number and types of
investigations and prosecutions funded by the Intellectual Property
Piracy Prevention and Prosecution Fund.
(c) For purposes of this chapter, "organized crime" shall have the
same meaning as is specified in subdivision (d) of Section 186.2.
(d) For purposes of this chapter, "intellectual property" means
property that results from original creative thought, such as
patents, copyright material, and trademarks.
13849.2. (a) There is hereby established the Intellectual
Property Piracy Prevention and Prosecution Fund to provide total or
partial reimbursement for costs incurred by local law enforcement
agencies assisting the DOCIP in ongoing investigations or
prosecutions, or both, of organized crimes involving intellectual
property theft.
(b) Upon appropriation by the Legislature, the Controller shall
make payments from the fund, upon the approval of the Attorney
General, to local law enforcement agencies that provide substantial
assistance to the DOCIP in connection with open investigations or
court proceedings, or both, against organized crime involving
intellectual property theft, including, but not limited to, all of
the following:
(1) Counterfeit goods.
(2) Copyright infringement.
(3) Trademark infringement.
(4) Pirated CDs.
(5) Pirated DVDs.
(6) Pirated computer software.
(c) Investigations of intellectual property theft related to
motion pictures shall receive the highest priority in making
disbursements from the fund.
(d) Notwithstanding Section 1463.001, all fines resulting from
prosecutions by the DOCIP shall be deposited in the fund.
SEC. 10. 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.
SEC. 11. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to ensure public peace against the accelerating problem
of intellectual property piracy, it is necessary for this act to take
effect immediately.