BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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3
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SB 830 (Wright)
As Amended August 17, 2010
Hearing date: August 26, 2010
Penal Code
JM:mc PURSUANT TO SR 29.10
MUSIC AND AUDIO-VISUAL PIRACY
HISTORY
Source: Recording Industry Association of America
Prior Legislation: AB 2750 (Krekorian) - Ch. 468, Stats. 2008
AB 64 (Cohn) - Ch. 9, Stats. 2006
SB 1506 (Murray) - Ch. 617, Stats. 2005
Support: Universal Music Group; Sony Music
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD STATUTORY ILLUSTRATIONS OF WHAT MEDIA CAN BE INVOLVED OR USED
IN A MUSIC OR AUDIO-VISUAL PIRACY CASE INCLUDE CURRENT TECHNOLOGY
AND DEVICES, SUCH AS FLASH DRIVES, MEMORY CARDS AND OTHER DATA
STORAGE DEVICES?
PURPOSE
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The purpose of this bill is to state examples of media used in
music and movie piracy that reflect current technology.
Existing law (Pen. Code 653w) 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. It is an element of this offense
that the defendant failed to disclose the true name and address
of the manufacturer and the name of the artist.
A violation of Section 653w 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 2, 3, or 5
years, or a fine of up to $250,000, or both.
First violation involving less than 100 copies of an audio
recording or an audiovisual work is a misdemeanor, punishable
by up to one year in county jail, or a fine not exceeding
$25,000, or both.
Subsequent violation involving less than 100 copies of an
audio recording or an audiovisual work is an alternative
felony-misdemeanor, punishable by up to one year in county
jail, 16 months, 2 years, or 3 years in state prison, or a
fine not exceeding $100,000, or both. (Penal Code 653w.)
Existing law defines a "recording" as "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."
This bill includes any memory card, flash drive, hard drive,
data storage device, as specific illustrations or examples of a
recoding.
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Existing law defines "audiovisual works" as "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, tapes, on which the works
are embodied."
This bill includes discs, memory cards, flash drives, hard
drives, data storage device, or other devices as specific
illustrations or example of audio-visual works.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
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contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 830 is a straightforward bill with no opposition
that will clarify existing piracy laws by updating the
term "recording" to include all newer forms of storage
media.
California has a serious problem with intellectual
property piracy. Nearly a half billion dollars in
revenue were lost by the state and local governments
due to counterfeited goods, including music and
movies.
The state's existing statute to protect against music
piracy has not kept pace with latest downloading
technologies such as memory cards, flash drives, and
data storage devices. SB 830 is intended to simply
clarify existing law by listing examples of the latest
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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technology and devices.
2. Federal Law Controls Copyright - State Law Generally Involves
Other Defined Offenses
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Federal law preempts state law in the area of copyright. State
laws related to copyright are generally called "true name and
address" laws, which are intended to protect consumers and
prohibit specified forms of unfair competition. Penal Code
Section 653w is a form of true name and address law. This bill
includes illustrations of relatively recently developed devices,
such as flash drives and memory cards, which can be used to
violate Section 653w.
The United States 9th Circuit Court of Appeals upheld the
California true name and address law in Anderson v. Nidorf (9th
Cir. 1994 26 F.3d 100). Cletus Anderson was convicted under
Penal Code Section 653w for failing to disclose the origin of a
sound recording: Anderson's claim that Section 653w is
preempted by federal copyright law was rejected by the 9th
Circuit. The court in Anderson explained its holding that the
California law, in protecting interests beyond and apart from
federal copyright law, was not preempted by federal law:
. . . [T]he district court stated: [] "[Anderson's]
argument ignores [that] 653w was designed to serve:
'assisting consumers in this state by mandating that
manufacturers market products for which consumers can
go back to the source if there are any problems or
complaints.' Preemption would frustrate the State's
objective of consumer protection through disclosure."
[] Federal copyright laws do not . . . protect
consumers. They are designed to protect the property
rights of copyright owners.
?Because Section 653w does not prohibit the
reproduction of copyrighted works, but rather
prohibits selling recordings without disclosing the
manufacturer and author of the recording (regardless
of its copyright status), the federal copyright laws
do not preempt the state statute. (Internal
citations omitted, bold type added.)
The decision in Anderson did not consider whether the California
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true name and address statute would be preempted by federal law
if the sole intent of the law were to prevent piracy. However,
such an argument can be made from the decision in Anderson,
which focused on the consumer protection aspect of the
California law.
Section 653w very broadly describes the devices and media that
can be used in a violation of that statute. The section refers
to "any tangible medium" upon which audio works are stored or
recorded and states that the statute applies to audio-visual
works without regard to the nature of the medium or device on
which the works are embodied. This bill simply adds examples or
illustrations of media that can be used in a violation of the
law. It could be argued that large capacity storage devices,
such as hard drives and memory cards, would be used to commit
substantial violations of federal copyright law. Such devices
would not be used in sales of music of movies to unsuspecting
individual consumers.
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