BILL ANALYSIS Ó SB 1479 Page 1 SENATE THIRD READING SB 1479 (Pavley) As Amended August 6, 2012 Majority vote SENATE VOTE :36-0 PUBLIC SAFETY 5-1 ----------------------------------------------------------------- |Ayes:|Knight, Cedillo, Hagman, | | | | |Mitchell, Hall | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Ammiano | | | | | | | | ----------------------------------------------------------------- SUMMARY : Provides that in music or video piracy cases, restitution shall include the value of pirated works that were seized from the defendant, but not actually sold. Specifically, this bill : 1)Specifies that for purposes of restitution involving crimes of music and video piracy, the possession of non-conforming devices or articles intended for sale constitutes actual economic loss to an owner or lawful producer in the form of displaced legitimate wholesale purchases. 2)Requires a restitution order in music and video piracy cases to be based on the value of legitimate copies of the works illegally possessed by the defendant had that number of works been legitimately purchased at the wholesale price. 3)Contains double jointing language to SB 1177 (Leno) to avoid chaptering out issues. EXISTING LAW : 1)States it is the unequivocal intention of the people of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or SB 1479 Page 2 disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. 2)Requires full victim restitution for economic losses determined by the court. 3)States that economic losses include, but are not limited to, the following: full or partial payment for the value of stolen or damaged property; medical expenses; mental health counseling expenses; 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; 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; noneconomic losses, including, but not limited to, psychological harm, for felony violations of Penal Code Section 288; interest at the rate of 10% per annum; actual and reasonable attorney's fees and other collection costs; relocation expenses incurred by an adult victim; expenses to install or increase residential security; expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, where the victim suffers permanent disability as a direct result of the crime; and, expenses to monitor and repair the credit report of a victim of identity theft. 4)Defines a "victim", for purposes of restitution, as including any of the following: a) The immediate surviving family of the actual victim; b) 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; and, c) Any person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions: i) At the time of the crime was the parent, SB 1479 Page 3 grandparent, sibling, spouse, child, or grandchild of the victim; ii) At the time of the crime was living in the household of the victim; iii) 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 above; iv) Is another family member of the victim, including, but not limited to, the victim's fiancé or fiancée, and who witnessed the crime; or, v) Is the primary caretaker of a minor victim. 5)Provides that a person is guilty of a crime when he or she knowingly attempts to sell, rent or manufacture, or possess for these purposes, an illicit audio recording or audiovisual work. The essence of this crime is that the defendant failed to disclose the true name and address of the manufacturer and the name of the artist. The crime is punishable as follows: a) A violation involving at least 100 copies of an audio recording or an audiovisual work is an alternative felony-misdemeanor, punishable by imprisonment for up to one year in the county jail, or in state prison for two, three, or five years, or a fine of up to $500,000, or both. b) A first violation involving less than 100 copies is a misdemeanor, punishable by up to one year in county jail, or a fine not exceeding $50,000, or both. c) A subsequent violation involving less than 100 copies is an alternative felony-misdemeanor, punishable by up to one year in county jail, 16 months, two years, or three years in state prison, or a fine not exceeding $200,000, or both. 6)Prohibits transferring any recording for purposes of sale or financial gain, or transporting such recordings for financial gain. An offense involving at least 1,000 units is an alternate felony-misdemeanor, with a county jail term of two, three or five years and fine of up to SB 1479 Page 4 $500,000. An offense involving less than 1,000 units is a misdemeanor with a fine of up to $50,000. A second conviction for fewer than 1,000 units is a straight felony, with a maximum fine of $200,000. 7)Prohibits selling or offering for sale, etc. illegally transferred recordings. A first offense involving at least 100 units is a misdemeanor, with maximum one-year jail term and maximum $20,000 fine. A second conviction is an alternate felony- misdemeanor, with maximum $50,000 fine. A first offense involving less than 100 units is a misdemeanor, with maximum 6-months jail term and a maximum fine of $10,000. A second offense involving less than 100 units is a misdemeanor, with maximum one-year jail term and maximum $20,000 fine. A third offense involving less than 100 units is an alternate felony-misdemeanor, with maximum $25,000 fine. 8)Prohibits the unauthorized recording of live performances for purposes of sale or financial gain. An offense involving at least 1,000 units is an alternate felony-misdemeanor, with a county jail term of two, three or five years and fine of up to $500,000. An offense involving less than 1,000 units is a misdemeanor with a fine of up to $50,000. A second conviction for fewer than 1,000 units is a straight felony, with a maximum fine of $200,000. 9)Prohibits transporting unauthorized recording of live performances for financial gain. An offense involving at least 1,000 units is an alternate felony-misdemeanor, with a county jail term of two, three or five years and fine of up to $500,000. An offense involving less than 1,000 units is a misdemeanor with a fine of up to $50,000. A second conviction for fewer than 1,000 units is a straight felony, with a maximum fine of $200,000. 10)States that a person who violates a disc manufacturing statute, as specified, is guilty of a misdemeanor, punishable by a fine of between $500 and $25,000 for a first offense. A subsequent offense is punishable by a fine of between $5,000 and $250,000. 11)States that any person who buys, sells, receives, transfers, or possess for purposes of sale or rental an optical disc knowing that the disc was manufactured in California without the required identification mark, or with a false mark, is SB 1479 Page 5 guilty of a misdemeanor, punishable by imprisonment in county jail for up to a year, a fine of up to $10,000, or both. 12)Makes it is a misdemeanor to knowingly remove, deface, cover, alter or destroy the required identification mark on an optical disc. The crime is punishable by a jail term of up to one year, a fine of up to $10,000, or both. 13)Makes it a crime for any person to willfully manufacture, intentionally sell, or knowingly possess for sale any counterfeit mark, punishable as follows: a) When the offense involves less than 1,000 articles, with a total retail or fair market value less than that required for grand theft, and if the defendant is an individual, the crime is punished by a fine of not more than $10,000, or by imprisonment in county jail of up to one year, or by both. If the defendant is a business entity, the maximum fine is $200,000; b) When the offense involves 1,000 or more of the articles, or has a total retail or fair market value equal to or greater than that required for grand theft, and if the defendant is an individual, the crime is punished as an alternate felony misdemeanor, or a fine not to exceed $500,000, or by both; or, if the defendant is a business entity, by a fine not to exceed $1 million; and, c) For a subsequent conviction if the defendant is an individual, are punished as an alternate felony misdemeanor, or by a fine of not more than $100,000, or both that fine and imprisonment. For a subsequent conviction of a business entity, the crime is punished by a fine of not more than $400,000. FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS : According to the author, "SB 1479 seeks to provide a clear standard for restitution in cases involving pirated music and movies. We need adequate deterrents to combat this growing epidemic. "SB1479 strengthens our piracy laws by making it clear that restitution is appropriate in cases involving the possession of SB 1479 Page 6 fraudulent recordings intended for sale. The bill also provides clarification to the courts on how restitution is calculated. "In 2011, more than 600,000 illegal CDs and DVDs were seized in California. In 2007, the LA Economic Development Corporations cited that the music industry lost $851 million due to counterfeiting, while the movie industry lost over $2 billion. State and local governments also lost significant revenue because of lost sales. "The actions of media pirates are decimating what have long been California-based, treasured industries. We need adequate deterrents to reflect the severity of the crime." Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0004446