BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 2122 (Bocanegra) - Crimes: media piracy of audiovisual works
and audio recordings.
Amended: As Introduced Policy Vote: Public Safety 5-0
Urgency: No Mandate: Yes
Hearing Date: June 30, 2014
Consultant: Jolie Onodera
This bill does not meet the criteria for referral to the
Suspense File.
Bill Summary: AB 2122 would expand the alternate
felony/misdemeanor crime of media piracy involving at least 100
articles of specified recordings or audiovisual works to apply
in cases where the defendant's conduct involved the "commercial
equivalent" of 100 articles, as specified.
Fiscal Impact:
Potential increase in non-reimbursable local costs for
enforcement, incarceration, and probation for misdemeanor
and jail felony convictions related to violations of the
expanded definition of media piracy. Local costs would be
offset to a degree by fine revenues to the extent fines are
imposed and collected.
Likely minor increase in state incarceration costs
(General Fund) for additional felony convictions requiring a
state prison term under the expanded definition of media
piracy. There have been fewer than five commitments to state
prison over the past two years for this offense since 2011
Realignment. The annual cost for one additional contracted
bed is estimated at $31,000.
Background: Existing law provides that a person is guilty of a
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 to sell, rent, or
manufacture, or possess for those purposes, an illicit audio
recording or audiovisual work. The essence of this crime is that
the defendant fails to disclose the true name and address of the
manufacturer and the name of the artist.
AB 2122 (Bocanegra)
Page 1
A violation involving at least 100 articles of audio recordings
or 100 articles of audiovisual works is an alternate
felony/misdemeanor, punishable by a misdemeanor term of up to
one year in county jail, or a felony jail term of two, three, or
five years, a fine of up to $500,000, or both the fine and
imprisonment.
A first violation involving less than 100 articles is a
misdemeanor punishable by up to one year in county jail, by a
fine of up to $50,000, or both. Subsequent violations involving
less than 100 articles are punishable by up to one year in
county jail, a felony jail term of 16 months, two, or three
years, a fine of up to $200,000, or both the fine and
imprisonment.
This bill seeks to address the illicit sale of single digital
storage devices (i.e., hard drives, memory cards, flash drives),
that while technically only consist of one item, may contain the
"commercial equivalent" of hundreds or thousands of audio
recordings or audiovisual works.
Proposed Law: This bill would provide that the "true name and
address" audio recording and audiovisual works piracy alternate
felony/misdemeanor shall apply where the defendant's conduct
involved the "commercial equivalent" of at least 100 articles of
sound recordings or audiovisual works.
Prior Legislation: SB 830 (Wright) Chapter 480/2010 expanded the
definition of a "recording" for the purposes of prosecution for
failing to disclose the origin of a recording when utilizing the
recording for financial gain, as specified. This bill specified
that "recordings" include memory cards, flash drives,
hard-drives, or data storage devices.
AB 64 (Cohn) Chapter 9/2006 made the possession or sale of at
least 100 articles, rather than 1,000 articles, of audio
recordings punishable as an alternate felony/misdemeanor.
Staff Comments: By expanding the definition of the alternate
felony/misdemeanor crime of media piracy to include the
commercial equivalent of 100 articles, the provisions of this
bill could result in an increase in non-reimbursable local costs
for enforcement, incarceration and probation, offset to a degree
by fine revenue.
AB 2122 (Bocanegra)
Page 2
This bill provides that a felony conviction is punishable
pursuant to Penal Code � 1170(h). While felony convictions would
largely be sentenced to county jail, in cases where the
defendant has a prior or current conviction for a serious or
violent felony or is required to register as a sex offender, the
sentence would be served in state prison.
It is estimated that the impact on state prisons would likely be
minor, as there have been fewer than five commitments to state
prison over the past two years for this offense since 2011
Realignment. The annual cost for one additional contracted bed
is estimated at $31,000 (General Fund).
The U.S. Supreme Court has ordered the Department of Corrections
and Rehabilitation (CDCR) to reduce the prison population to
137.5 percent of the prison system's design capacity by February
28, 2016. Although public safety realignment has achieved
significant reductions in the prison population, and the 2014-15
Governor's Budget projects meeting the population cap in the
near-term, the analysis by the Legislative Analyst's Office
suggests that CDCR's long-term prison caseload will likely
exceed this cap. Because California's institutions already
exceed the population limit, any near-term and future increases
to the state's prison population would likely require the state
to pursue one of several options including contracting-out for
additional bed space or releasing current inmates early onto
parole.