Via FurdLog Frank Field brings our attention to the case of an Arizona teenager pleading guilty to possession of counterfeit intellectual property (WaPo Resurrects AZ © Infringement Case). The Washington Post (reg. req.) has the AP wirestory (Teen Convicted Under Internet Piracy Law). The teenager was caught by a federal task force and was allegedly copying and selling pirated material. Because of his age (17 at the time of the acts), instead of being prosecuted under the federal copyright statutes, his prosecution was turned over to local authorities in order for him to avoid jail time (mandatory sentencing under federal law would have put him in jail for at least 3 months, if convicted). Read the Maricopa County Attorney press release: Maricopa County Attorney Announces Breakthrough Conviction in Piracy Case [PDF].
What is unusual about this case is the state action. As EFF attorney Jason Schultz notes in the AP story, "Generally copyright is exclusively a federal matter ... Up until this point, you just haven't seen states involved at all." Now, in this case, this is probably a good deal for the teenager who would otherwise face federal action. However, I am concerned that the states are now getting into the business of enforcing copyright for Hollywood and the Feds, both of whom have plenty of their own resources.
More important, however, is that state copyright laws frequently have even less protections than federal copyright law. Take, for example, the law under which this teenager pled guilty: Arizona Revised Statutes § 44-1453 Counterfeit marks; violation; classification; presumption; seizure; forfeiture; remedies; definitions. Section 44-1453 claims that anyone who:
knowingly and with intent to sell or distribute uses, displays, advertises, distributes, offers for sale, sells or possesses any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 1 misdemeanor.
Well, a misdemeanor doesn't sound too bad. But the statute goes on:
A person who commits any act proscribed in subsection A is guilty of a class 6 felony if ... At least one of the following is true:
(a) The violation involves more than one hundred but fewer than one thousand items that bear the counterfeit mark.
(b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is more than one thousand dollars but less than ten thousand dollars.
A felony now, but it gets worse.
C. A person who knowingly manufactures or produces with intent to sell or distribute any item that bears a counterfeit mark or any service that is identified by a counterfeit mark is guilty of a class 5 felony.
D. A person who commits any act proscribed by subsection A is guilty of a class 5 felony if either:
1. The person has two or more previous convictions under this section.
2. At least one of the following is true:
(a) The violation involves at least one thousand items that bear the counterfeit mark.
(b) The total retail value of all of the items or services that bear or are identified by the counterfeit mark is at least ten thousand dollars.
We are now up to class 5 felonies. But, you really have to be a copyright pirate to be guilty, right?
Nope.
Intent to sell or distribute can be found if "knowingly has possession, custody or control of at least twenty-six items that bear a counterfeit mark." Well, still, you have to have pirated goods, right?
Nope:
1. "Counterfeit mark" means:
(a) Any unauthorized reproduction or copy of intellectual property.
If you have ripped songs from CDs you own to MP3, you have made "unauthorized reproductions." If you make fair use of a copyrighted work, you have made "unauthorized reproductions." And, if you have 1,000 copies of your fair use, you are guilty of class 5 felony. Joy.
There is no defense. You are guilty in Arizona for exercising fair use rights under federal law. This would seem to have just a little bit of conflict with the First Amendement.
One also has to wonder if this law doesn't lead, just a little bit, into federal preemption questions. How, exactly, is this law sufficiently different from the protections of federal copyright law? What is the additional requirment that avoids preemption?
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Trent Childers on March 8, 2005 08:22 PM writes...
Well this has to be one the worst written laws I have seen. Again we have the government buying into the entertainment industry of the concept of intellectual property. There is no intellectual property. A person cannot own thoughts like they can own property. Copyright and Patents are state authorized monopolies. To equate them with property is wrong.
Permalink to Comment2. Fred von Lohmann on March 9, 2005 03:52 AM writes...
I'd tend to agree with Ernie -- this should be preempted by federal copyright law (17 USC 301). This statute smells like a left-over from the era when the RIAA companies were trying to use state laws to crack down on retailers that sold "bootlegs" -- live concert recordings made legally overseas and imported without authorization of the record label. Many of these statutes did suffer from pre-emption problems.
Of course, the kid who was convicted likely waived his right to appeal in order to get the lower state penalties, so he'll not be bringing the pre-emption challenge.
Permalink to Comment3. James on March 10, 2005 03:20 AM writes...
"If you have ripped songs from CDs you own to MP3, you have made 'unauthorized reproductions.' If you make fair use of a copyrighted work, you have made 'unauthorized reproductions.' And, if you have 1,000 copies of your fair use, you are guilty of class 5 felony. Joy."
You seem to be reading "authorized" as "authorized by the copyright holder." But isn't a more reasonable reading (and one less likely to present First Amendment problems), "authorized by the copyright holder or the law"? I doubt a court would interpret the statute to create the Draconian result you fear. (I agree that there are at least very plausible preemption arguments here.)
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