Saturday, March 04, 2006

Unlawful Recording in Missouri

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 570.241
No 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 570.240
The 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 570.230
No 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?


Blogger Arfanser said...

I told you on Friday that I was going to have to ridicule everything you wrote on any blog. I take it back now. This was a quality post.

9:55 PM  
Blogger warm fuzzy said...

The post was long, but worth it. You bring up some interesting questions.

10:17 PM  
Anonymous big brother said...

This man is apparently a threat to society or why would the government of spent all this money prosecuting him. Didn't you know the real reason we invaded Iraq was because Sadaam was selling burned CDs from the back door of his palace. That's where I got my backstreet boys CD.

It's like chewbacka living on the planet of endore, it doesn't make sense. Lets just say it's a good thing the recording industry isn't punishing him, or he would have been shot on the spot.

There is a good Southpark that deals with downloading songs. It is an excellent episode on this subject.

6:33 PM  
Blogger scarlet panda said...

Good post. You're not a liar (not about this, anyway). Sorry about that.

While I agree that this prosecution seems silly and this crime should not be a felony, I'm not sure I agree with your argument against co-opting the government to enforce private rights. Don't we use the legal system to enforce private rights all the time? First, even in a civil action, you're using the legal system. Second, we often have both criminal and civil remedies for what appear to be infringements on private rights--if someone steals your stuff, you can sue for conversion or trespass, but the police can also bring criminal charges. Is that wrong?

7:08 AM  
Blogger Ally said...

Excellent blog. I'm so relieved that the legislature is doing everything it can to protect poor record labels who are being practically sacrificed by criminals who burn CDs and whatnot.

We need to use some common sense here. Our judicial system is incredibly back-logged, and we're wasting resources prosecuting someone for selling burned CDs out of his trunk? Surely our resources could be more efficiently used. But like our government's non-responsiveness to Katrina, we continue to be so bogged down in procedure and bureaucracy that we accomplish little to nothing.

I'm not very familiar with criminal law, but isn't part of a prosecutor's job to use discretion in who she prosecutes? If we can offer drug dealers, rapists, and every other criminal a "deal" or plea, it seems like this guy should have been able to get a break. A felony conviction for selling burned CDs seems a bit ridiculous particularly since battery is only a misdeameanor (in Georgia at least).

9:27 AM  
Blogger Fishfrog said...

Some replies from FishFrog.

Big Brother, just because you listen to crappy music doesn't mean you have to go to Iraq to buy CDs. You can order them online from Amazon and still keep your poor tastes a secret.

SP, as usual, you bring up a good point. Should the government have any role in enforcing individual property rights against infringement, or should the government just provide a venue for individuals to vindicate their rights? It's a fairly large and complicated mess of an issue that I need to think about more, but I'm comfortable in saying that in the specific instance of individuals' infringement of copyrights, the government should not enforce the record companies' right for them.

Ally, first off, let me say how pleased and flattered I am by your compliment. Secondly, most prosecutors enjoy broad discretion in pleading cases out. 80-90% of criminal trial are resolved by a plea deal short of trial. In this specific case, the defendant was willing to plead to a misdemeanor version of the crime, but the prosecutor wouldn't deal. There are a couple of reasons for this. First off, in St. Louis city, all decisions about plea offers are handed down from on high from the Circuit Attorney (Jennifer Joyce) and two or three of her top ranking prosecutors. The individual prosecutors have little if any ability to negotiate with defendants about deals. Secondly, this case was handled throught the circuit attorney's white collar crimes division (it's bizarre that an indigent person can be convicted of a white collar crime). This division sees very little actual trial work as the cases general take a lot of time to develop and plead out more frequently than other crimes. The prosecutor was eager to put all of his work in prepping the trial to use. In the end all he got was a misdemeanor sentence with a felony label.

Should he have let our guy plead to a misdemeanor? I would say of course. In fact, by the Code of Professional conduct, prosecutors serve the community and the bar in a very unique way, different from every other type of attorney. Most attorney's have only to think about zealously representing their clients. Prosecutors are ethically obligated to consider whether justice would be served (whatever that means) by continued prosecution. I personally think the prosecutor was unethical in refusing the plea offer, but I am a little biased.

11:56 AM  
Blogger Xeno said...

Keeping music in a physical form is not going to exist in 10 years. Disks are only going to be good for back ups. Laws like this are not going to apply to anything soon enough.

8:31 PM  

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