Given the uproar surrounding the PROTECT IP Act and SOPA, it would be easy to think that all meaningful copyright and intellectual property policy is made here in Washington, D.C. Certainly, as PK’s Art Brodsky has pointed out, it is important to stay focused on Congress, because they have shown with the PIRATE Act, the Pro-IP Act, and COICA, the content industry will be back on Capitol Hill to ask for more protection.
The content industry has also been successful in winning protections from state governments. As is evidenced by the “Super DMCA” bills of the early 2000s, states often duplicate and supplement federal copyright law. Two related bills currently under consideration in Florida would expand the protections afforded to the recording industry even further. One of the bills, H.B. 189, is scheduled to be considered by the Florida House Judiciary Committee tomorrow (February 1), moving it one step closer to passage.
First, it is important to look at the current state of the law. Florida’s pseudo-copyright law prohibits unauthorized distributions of copyrighted works in a number of ways. Many of Florida’s laws duplicate rights provided by federal copyright law. For example, the law already bans the sale or resale of objects onto which sounds have “been transferred without the consent of the owner.” Others, however, are original. Under the existing Florida Statutes section 540.11(3)(a)3., it is prohibited to:
“Knowingly, for commercial advantage or private financial gain to sell or resell, offer for sale or resale, advertise, cause the sale or resale of, rent, transport or cause to be rented or transported, or possess for such purposes, any phonograph record, disk, wire, tape, film, or other article on which sounds are recorded, unless the outside cover, box, or jacket clearly and conspicuously discloses the actual name and address of the manufacturer thereof, and the name of the actual performer or group.”
Essentially, this provision makes it illegal to sell CDs or tapes that haven’t been properly labeled. In Briggs v. The State of Georgia, a nearly identical statute was used to prosecute a man found in possession of “52 individually wrapped compact discs that allegedly bear unauthorized reproductions of copyrighted material.” Though it appears that it is illegal to sell your friend a CD you own in an unmarked case, it is more likely that this law is intended to be a tool against bootleggers (it is highly unlikely that Briggs was selling those 52 CDs to his friends).
While federal law generally outweighs, or preempts, equivalent state law, it appears that the State of Florida would be able to enforce this statute. In Briggs, the Supreme Court of Georgia held that the statute (OCGA § 16-8-80(b)) would not be made redundant by federal law because it passed the contained “an extra element… that qualitatively distinguishes it from copyright and saves it from preemption.”
The newly proposed and nearly-identical bills, H.B. 189 and S.B. 432, would add a new method of enforcement to the existing law. Among other things, the bills would add the following language:
A person who violates subparagraph (a)3. Shall be ordered to make restitution to any owner or lawful producer of a master recording that has suffered injury resulting from the crime, or to the trade association representing such owner or lawful producer. The order of restitution shall be based on the aggregate wholesale value of lawfully manufactured and authorized recording corresponding to the number of nonconforming recording involved in the offense unless a greater value can be proven. The order of restitution shall also include investigative costs relating to the offense. [Emphasis added]
Certainly, it is a good idea to require copyright violators to compensate those they have harmed. However, would not necessarily happen here: the artists who have suffered the injury may lose out to the trade associations representing the record labels with which the artists are signed. Under this bill, if someone infringes an artist’s copyright, the trade association representing their label could get paid, as long as the artist has authorized the association to “represent the victim’s interest in criminal legal proceedings.” This would not be a difficult thing for major studios to add to artists’ contracts, and would almost certainly become standard practice, benefitting trade associations at the expense of the artists they supposedly support.
Instead of advancing a copyright law that helps artists harmed by copyright infringement, the state of Florida will allow an anti-bootlegging provision to serve the interests of trade associations. The Florida legislature should reject these bills, and instead ensure that artists are protected.