two year prison sentence for reproduction or distribution during any 180 day period of (1) more than 100 but less than 1000 phonorecords infringing the copyright in one or more sound recordings; or (2) more than 7 but less than 65 copies infringing the copyright in one or more motion pictures or other audiovisual works. Section 2319 (c) provides for up to a $25,000 fine and/or one year prison sentence for any other case of $506(a) criminal infringement of a copyright. Sections 506(b) and 509. Seizure and Forfeiture. In a conviction for criminal copyright infringement under 17 U.S.C. $506(b) the court must "order the forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords." Section 503(b) provides a similar but discretionary remedy for a civil infringement by providing that the court "may order the destruction or other reasonable disposition of all copies or phonorecords...." Section 509(a) provides that copies or phonorecords "used, intended for use, or possessed with intent to use in violation of section 506(a), and all (... equipment) or other articles by means of which such copies or phonorecords may be reproduced may be seized and forfeited to the United States." It is unclear whether this contemplates seizure prior to a judgment of infringement. Section 509 (b) relates to seizure and judicial forfeiture in relation to the customs law contained in title 19. ... Section 510. Remedies for Alteration of Programming by Cable Systems. The House Report explains the remedies available to a plaintiff bringing an action under 17 U.S.C. §ll1(c)(3). Section 509(b) specifies a new discretionary remedy for tended to opt for the surer civil field whenever By the 1970's increased profits in the motion picture and sound recording industries and development of equipment that made duplication of these products easy and inexpensive made motion picture and record piracy quite profitable. The rapid expansion of this kind of piracy caused serious economic problems for these copyright proprietors who went to Congress to get legislation that would help them enforce their exclusive rights. Congress responded in 1976 by enacting $506(a) which contained "a special provision applying to any person who infringes willfully and for purposes of commercial advantage the copyright in a sound recording or a motion picture." H. Rep. No. 1476 at 163. In 1981 these proprietors again appeared before Congress to urge that existing criminal penalties for piracy and counterfeiting9/ should be strengthened. At this time the counterfeiting and piracy of motion pictures, records, and tapes was described as "a highly sophisticated business that has grown into a billion dollar a year industry."10/ Mr. Bouras of the Motion Picture Association of America (hereafter MPAA) urged that "civil remedies and sanctions have proved completely ineffective in dealing with large-scale pirates and counterfeiters." And he testified that "the respective experience of MPAA and RIAA show that piracy and counterfeiting of motion pictures and sound recordings is grow 8. Id. at 158-159, citations omitted. 9. Piracy is the unauthorized duplication of original commercial products. Counterfeiting is the forging of the packaging and labeling of the original product. Bootlegging is the industry term used for the unauthorized duplication and sale of video and audio tapes or cassettes. 10. The Piracy and Counterfeiting Amendments Act of 1981: Hearings on S. 691 Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 26 (1981) (statement of James Bouras, Vice President and Deputy General Attorney, Motion Picture Association of America, Inc.). ing by leaps and bounds, and that the penalties provided in current law are totally inadequate to deal with these lucrative crimes."11/ Congress responded by enacting the Piracy and Counterfeiting Amendment of 1982 which made the fine for piracy and counterfeiting stiffer and provided a longer maximum prison sentence that would make this piracy or counterfeiting a felony crime. With the exception of motion picture and sound recording piracy it remains true that the criminal sanctions of the copyright law have almost never been invoked. Primarily, this is because the civil remedies are considered adequate to ensure a reasonable level of compliance with the law. 1982. B. Effectiveness of the Current Criminal Remedies The increased criminal penalties went into effect on May 24, It is possible to examine accounts of investigations, complaints, and convictions, and also the reported cases during the last three years and get some perception of the "adequacy and availability" of these remedies. 1. Increased Awareness of Criminal Sanctions Even before the new criminal penalties went into effect in 1982, the industries were becoming more vigilant in prosecuting civil and criminal actions. Both the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have cooperated with federal and state officials in investigating leads concerning piracy and counterfeiting. Passage of the 1982 bill led to even greater efforts to curb domestic and worldwide piracy. See, e.g., Hollywood Reporter (June 8, 1982) 1, 4; Washington Post (July 20, 1982) at C-5. In April of 1983 North Carolina FBI agents confiscated more than 1,400 pirated videocassettes of motion pictures and television shows with an estimated value of $1,000,000. 11. Id. at 21, 22. The FBI was assisted by representatives from MPAA and RIAA. Robert Pence, One, we the agent in charge, said, "We made those raids for two reasons: hope the evidence will bring a grand jury indictment; and, two, we want to send a signal to people that this act is a felony."12/ On July 18, 1983, four of the seven men charged were sentenced to fines ranging from $150 to $1,000 and two of the men to two years probation.13/ Two other men were tried before a jury. One, the first to be sentenced under the 1982 amendment was sentenced to two years in prison, fined $5,000 and required to reimburse the victimized diskeries $1,478. The other man charged with one misdemeanor count of criminal copyright infringement and four counts of trafficking in counterfeit labels was sentenced to one year in prison, five years probation, and a $1,000 fine. 14/ Successful raids were conducted throughout the United States where pirated or counterfeited motion pictures, records, and tapes and equipment were seized.15/ 2. Sentences Imposed Under $506 During these raids allegedly pirated tapes, records, or videocassettes and equipment were confiscated; frequently the raid led to arrests. On October 5, 1982, following "extensive" investigation, the FBI made the 12. Variety (April 27, 1983) 113, 114. 13. Variety (July 27, 1983) 39. 14. Variety (Aug. 22, 1984) 117, 120. 15. A partial listing of these raids includes the following for sound recordings: Arizona, in the largest "bootleg" cassette operation ever, 5,600 master audio tapes were seized in February of 1984, Variety (March 14, 1984) 127; California and Kentucky, more than 22,000 allegedly illegal records and tapes, Variety (June 2, 1982) 73; Connecticut, more than 1,000 master tapes and bootleg albums, Cash Box (Jan. 15, 1983) 18; Florida, more than 7,000 illicit tapes and records, Variety (March 23, 1983) 77; Arkansas, New Jersey, Connecticut, approximately 393,000 allegedly pirated records and tapes, Daily Variety (May 4, 1983) 11; Oklahoma, Billboard (Jan. 7, 1984) 54. During the same period the following raids resulted in the confiscation of: New York, 80 pirated videocassettes, Variety (May 11, 1983) 83; Michigan, 1,250 pirated videocassettes, Variety (Jan. 26, 1984) 28; Arkansas, 125 videocassettes; Indiana, 85; Michigan, 141; Oklahoma, 339. MPAA Anti-piracy Newsletter (January 1, 1985) 2. first arrests under the amended law. Two men, one a repeat offender, were charged with illegally duplicating and selling videocassettes of copyrighted movies.16/ Initially courts appeared somewhat reluctant actually to impose a prison sentence under the new law; almost all convicted offenders were fined but received a probated or suspended sentence. Gradually more actual prison sentences were imposed on repeat offenders. In September of 1983, a Florida man, Lee Cash, charged with one count of stolen property and twelve counts of copyright infringement was sentenced to three years and fined $10,000.00.17/ On August 27, 1984, George Washington Cooper, who had been repeatedly involved in massive "bootlegging" activities, was given 12 consecutive one-year terms, the longest prison sentence ever given in a case of this kind and a $25,000 fine. Cooper was convicted of nine counts of copyright infringement and one count of conspiracy.18/ It should be noted that this was Cooper's third copyright infringement. When he was arrested, he was out on an appeal bond from his two previous convictions .19/ conviction for criminal Substantial fines have also been imposed; however, none of them so far have reached the $250,000 maximum. It is difficult to determine the extent to which fines are heavier now than prior to the 1982 amendment since the amount of the fines assessed is keyed to the scale of defendant's operation and his/her prior copyright infringement. It may also be heavier where the defendant(s) is also being charged with other violations of the 16. Hollywood Reporter (Oct. 8, 1982) 4. 17. Variety (April 11, 1984) 91. 18. Variety (Sept. 12, 1984) 44. 19. Variety (Aug. 22, 1984) 117 at 120. In 1980 in South Carolina Cooper was convicted on one count of criminal copyright infringement and received a one-year sentence, suspended for 6 months, a $5,000 fine and five years of probation. In 1981 in Florida Cooper was convicted of (RICO) violations, copyright conspiracy, and wire fraud and received a nine-year sentence which was affirmed by the 11th Circuit. Variety (July 4, 1984) 67, 73. |