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State Criminal Law and IP Infringement

I just came across Powell v. State, an appellate case from the criminal court system in Alabama, dated April 29, 2011.  The citation is 2011 WL 1605067.

Here are the facts, as recited by the court:

The appellant, Johnson Augustus Powell, was convicted of one count of unlawful transport of articles containing sounds transferred without the consent of the owner, a violation of § 13A–8–81(a)(3), Ala.Code 1975. The trial court sentenced Powell to three years’ imprisonment. The trial court also ordered Powell to pay a $15,000 fine, $1,750 in restitution each to the Recording Industry Association of America (“RIAA”) and the Motion Picture Association of America (“MPAA”), $50 to the crime victims compensation fund, attorneys fees, and court costs.

The evidence presented at trial established the following pertinent facts. On February 23, 2008, Deputies Charles Turner and Jason Paul of the Blount County Sheriff’s Department were patrolling Interstate 65 in Blount County when they observed a vehicle being driven by Powell traveling above the posted speed limit. The deputies initiated a traffic stop, during which Deputy Turner asked Johnson for, and was given, consent to search Johnson’s vehicle. Deputy Paul searched the vehicle and discovered three duffel bags filled with a large quantity of what Deputy Paul believed to be unlawful, or “pirated,” copies of CDs and DVDs. According to Deputies Turner and Paul, the CDs and DVDs were not packaged in a manner typical for CDs and DVDs, did not contain the standard licensing and copyright information, and were labeled with a black marker.

The deputies arrested Johnson and called Deputy Roger Dabbs of the Blount County Sheriff’s Department to assist them. After arriving on the scene, Deputy Dabbs advised Powell his Miranda FN1 rights, and after waiving those rights, Powell decided to cooperate with the deputies. According to Dabbs, Powell told the officers that he was in the business of buying and selling CDs and DVDS and that he would buy the items for $3 apiece and would sell them for $5. At the time he was arrested, Powell was driving to a gasoline station to meet someone to sell the CDs and DVDs. Powell also told the officers that he sold the items in North Carolina, South Carolina, Georgia, Tennessee, and Alabama. Deputies Turner, Paul, and Dabbs all testified at trial. On cross-examination, each deputy admitted that he did not know if Powell had permission from the owners of the copyrighted material to reproduce or sell the CDs and DVDs in his possession.

James H. Duff, an investigator with the MPAA and the RIAA, also testified for the State at trial. Duff explained that on behalf of the RIAA and MPAA he analyzes and investigates law-enforcement cases involving unauthorized copying of music and movies that belong to the members constituting the RIAA and MPAA. Duff analyzed the CDs and DVDs recovered from Powell’s vehicle and explained that he believed that the CDs and DVDs were unauthorized copies of the copyrighted material. Duff based this conclusion on his belief that the CDs and DVDs were “pirated”—i.e., the CDs and DVDs did not include “the artist work or the sleeve or the jewel case” associated with industry-produced CDs or DVDs. (R. 140.) Additionally, Duff believed the CDs and DVDs to be pirated because the CDs and DVDs contained copyrighted material that had been “burned” onto rewritable disks using blank CDs and DVDs, which he referred to as CDRs and DVDRs. Duff explained that CDs and DVDs released pursuant to RIAA and MPAA standards contain copyrighted material that had been “pressed” into the CD or DVD. Duff contrasted a “burned” CD or DVD from a “pressed” CD or DVD by explaining that the former stores information on the top of the CD or DVD, while the latter stores information in the middle of the CD or DVD.

The court affirmed the conviction.

The opinion has a long discussion of preemption under Section 301 of the Copyright Act, concluding that the state law provision barring “unlawful transport” is not equivalent to any of the rights under Section 106, in part because acts amounting to “unlawful transport” — relocation of articles from one place to another — would not trigger liability under the federal statute.

Three years in jail.   Wow.

3 thoughts on “State Criminal Law and IP Infringement”

  1. That’s shocking. (And probably a good case to kick off a copyright course with.) I wondering: Was there anything in the statute that made the felony contingent on the scale or nature of the piracy? Was there anything in the case that suggested the conviction was about something other than piracy (like jailing Capone for tax evasion)? I’ll take a look.

  2. Just looked… a lot of interesting stuff there.

    It looks like the quantity (which I was pressing on) was a big issue in the defense. The statute would apply, based on the language, to one mix CD. So the defense tried to push on that.


    “[Defense counsel]: Let’s talk about the sheer volume. If there [were] only 10, that wouldn’t be a problem?

    “[Deputy Dabbs]: To be honest with you, we probably would not have even looked further with 10.

    “[Defense counsel]: Fifty?

    “[Deputy Dabbs]: We would start looking.

    “[Defense counsel]: Is there some fuzzy number that turns this into a crime?

    “[Deputy Dabbs]: If it goes from a few to a stack, I think we would start looking further.

    The defendant had almost 2000 discs. The court concluded:

    “When taken in context with the other prohibited acts, it is reasonable to conclude that law-enforcement authorities would focus their efforts on larger, commercial activities. Thus, the hypothetical situations involving the “blue-haired grandma” or “Aunt Sadie Mae” have no bearing on the facts at hand.”

  3. It is not reassuring to know that the contents of Alabamans’ iPhones/iPods are safe — at the discretion of local law (and traffic) enforcement!

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