Note: This is a fairly long post with some legal citations, but it has a story at the end that I think is worth the time.
I was having a conversation the other day with Matt and SP in which I told them that in Missouri, its illegal to sell a burned CD which does not contain the name and address of the manufacturer. SP called me a liar, and I will now vindicate myself. Following is the Missouri Statute saying as much:Section 570.241No person shall advertise, or offer for rental, sale, resale, or rent, sell, resell, or cause to be sold, resold, or possess for such purposes any article that has been produced in violation of the provisions of section 570.240, knowing, or having reasonable grounds to know, that the article has been produced in violation of the provisions of section 570.240.Section 570.240The label, cover, box or jacket on all phonograph records, discs, wires, tapes, films, videocassettes or other articles or medium now known or later developed on which sounds or images are recorded shall contain thereon in clearly readable print the name and address of the manufacturer.
The two sections working together make it a crime to sell a burned CD without putting the name of the manufacturer on it. These sections are backstopped by the following laws.Section 570.230No person shall advertise, or offer for sale, resale, or sell or resell, or cause to be sold, resold or process for such purposes any article that has been produced in violation of the provisions of section 570.225 or 570.226, knowing, or having reasonable grounds to know, that the sounds thereon have been so transferred without the consent of the owner.The crossreferenced sections in 570.230 say that you must have authorization from the original publisher (read record label).
So here's the thing: Missouri has decided to use its legal system and police force to prevent me from violating a major record label's copyright on music. In other words, the record labels have co-opted the government to enforce what has always been and should be a private cause of action. The state legislature has made was has always been a civil action into a criminal one.
The punishment for violating the labeling requirement of section 570.240 is a felony if you are found with more than 100 such CDs. That was recently amended. Prior to last year you had to have more than 1000 CDs for it to be a felony. And now let me tell a story that humanizes a little bit the effect of this law.
Last summer I had an opportunity to second-chair (on the defense side) a prosecution by the city of St. Louis of an indigent man whose car was searched under questionable circumstances. During the search, the police looked in his trunk and discovered a few thousand CDRs with musical artist names written on with permanent marker. He was arrested for violation of section 570.240.
The evidence was clearly stacked against him (I mean COME ON, he was clearly selling boot-legged CDs) and he didn't take the stand in his defense, notwithstanding the fact that he had no prior convictions that the prosecution could have dragged out to unfairly predjudice him in the eyes of the jury. The defense stategy was jury nullification (which is when the jury sees the prosecution as a huge waste of time and ignores the law). The jury convicted fairly quickly and sentenced the defendant to the minimum fine. Talking to the jury afterwards, most of them thought it was a big waste of time to prosecute a poor black man for selling boot-legged CDs. If it weren't for the fact that the jury got to choose the sentencing, two of the jurors would have voted not to convict, hanging the jury.
Personally, I sympathize with the jury. As a juror you're asked to determine what the facts are, what exactly happened. You are instructed that it is not your job to decide whether a law is wrong or right, just whether the facts of the case bring the defendant under a given statute. It's hard to imagine the verdict coming out any other way.
So our guy was convicted and received a fine. So what's the big deal, one may ask. Well, as I said, this guy was indigent, meaning he made less than $187 dollars a week. But over the course of the year since he was arrested, he had gotten a job teaching at a religious school. He was starting to turn his life around and help the community. However, as is the case nearly everywhere, a felony conviction precludes one from teaching children. As he was now a convicted felon, our guy lost his job.
I worked on this case over the course of about a month and a half prior to trial. It was the first prosecution under the statute in St. Louis. Two prosecutors worked the case, aided by one investigator and two interns. I'm not sure how many man hours they had to put into the case, but the trial itslef took two full days, about four times as long as the average drug possession case. Was it worth the man-hours of the prosecutor's office, the public defenders, the judge, jurors, court reporter, and court staff to convict a poor black man of selling improperly labeled CDs, making him dependent on the state in the process? Did the benefit to the record industry offset the loss to the community of St. Louis of a teacher?