BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2122|
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THIRD READING
Bill No: AB 2122
Author: Bocanegra (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-0, 6/17/14
AYES: Hancock, De Le�n, Liu, Mitchell, Steinberg
NO VOTE RECORDED: Anderson, Knight
SENATE APPROPRIATIONS COMMITTEE : 6-0, 6/30/14
AYES: De Le�n, Walters, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Gaines
ASSEMBLY FLOOR : 75-0, 4/24/14 - See last page for vote
SUBJECT : Crimes: audiovisual work: recordings
SOURCE : Recording Industry Association of America
DIGEST : This bill provides 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 recordings.
ANALYSIS : Existing law:
1.Provides that a person is guilty of a crime when he/she, for
financial gain or commercial advantage, knowingly attempts to
sell, rent or manufacture, or possess for those purposes, an
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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:
A. A violation involving at least 100 copies of an audio
recording or an audiovisual work is an alternate
felony-misdemeanor, punishable by a misdemeanor term of up
to one year in the county jail, or a sentenced felony jail
term or 2, 3, or 5 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 alternate felony-misdemeanor, punishable by up to one
year in county jail, or by a felony jail term sentence of
16 months, two years, or three years in state prison, or a
fine not exceeding $200,000, or both.
1.Defines a "recording" as any tangible medium upon which
information or sounds are recorded or otherwise stored,
including, but not limited to, a 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 stored, but does not
include sounds accompanying a motion picture or other
audiovisual work.
2.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, discs, memory cards,
flash drives, data storage devices, or other devices, on which
the works are embodied.
3.Requires the court to order a person who has been convicted of
a violation of the sound recording or audiovisual works true
name and address law to make restitution to an owner or lawful
producer, or trade association acting on behalf of the owner
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AB 2122
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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.
This bill provides that in a case involving a person's failure
to disclose the true name and address of the manufacturer and
performer of a sound recording or audiovisual work, the
determination of whether the matter involves at least 100
articles of a sound recording or audiovisual work shall apply to
the "commercial equivalent" of such articles as defined in
existing law.
Comments
According to the author:
AB 2122 continues the message that media piracy is a
serious crime that deprives businesses and artists of their
earned profits, thereby resulting in lost jobs and tax
revenue in California.
The State Legislature has already recognized, through the
passage of previous anti-piracy measures, the destructive
effect of piracy on California businesses and the value of
maintaining the competitiveness and profitability of the
California recording industry.
However, problems continue to arise as the practices of
media "pirates" continue to evolve with the development of
new technology. Therefore, it is necessary for the State
to update its anti-piracy laws to reflect the increasing
sophistication of this underground criminal market.
Many pirates now use digital tools with vast storage
capacity, such as memory sticks and computer hard drives,
to create fraudulent music or other audiovisual products
that can contain hundreds to thousands of unauthorized
recordings. Some are loaded with movies or music at the
point-of-sale and sold for next to nothing. The
unauthorized sales of these items displace legitimate
sales, thereby hurting the businesses of legal media
distributors, retailers, record labels, artists and
writers.
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Though California has a statute designed to protect the
entertainment industry and the general public against the
crime of media piracy, it needs to be clarified to
recognize the illicit sale of a single digital storage
device that, while only one item, may contain the
"commercial equivalent" of multiple musical recordings or
movies.
This measure will strengthen protections for businesses
against media piracy by clarifying that the sale of digital
storage devices containing the commercial equivalent of 100
or more records or movies constitutes a felony violation
under state law, thus aligning the criminal penalties with
the true degree of harm caused by the sales of these
pirated goods in California.
Prior Legislation
SB 830 (Wright, Chapter 480, Statutes of 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, Statutes of 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
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.
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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.
SUPPORT : (Verified 7/1/14)
Recording Industry Association of America (source)
California Police Chiefs Association
Los Angeles Area Chamber of Commerce
Motion Picture Association of America
ASSEMBLY FLOOR : 75-0, 4/24/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Gorell, Grove, Hagman, Hall, Roger Hern�ndez, Holden, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Medina, Melendez, Mullin, Muratsuchi, Nestande, Olsen, Pan,
Patterson, Perea, V. Manuel P�rez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.
P�rez
NO VOTE RECORDED: Gray, Harkey, Mansoor, Nazarian, Vacancy
JG:nl 7/1/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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