People v. Williams ( 2007 )

FIRST DIVISION
SEPTEMBER 10, 2007
No. 1-05-1141
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 7437
)
PAUL WILLIAMS, ) The Honorable
) Stuart E. Palmer,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
Following a bench trial, the defendant, Paul Williams, was
convicted of two counts of unlawful use of recorded sounds or
images in violation of section 16-7(a)(2) of the Criminal Code of
1961 (the Code) (720 ILCS 5/16-7(a)(2) (West 2004)), and two
counts of unlawful use of unidentified sound or audio visual
recordings in violation of section 16-8 of the Code (720 ILCS
5/16-8 (West 2004)). He was sentenced to two years' probation
and 60 days' time served in the Cook County jail and was assessed
costs and fines.
The defendant contends on appeal that: (1) all four of his
convictions are null and void because the federal Copyright Act
of 1976 (17 U.S.C. §101 et seq. (2000)) preempts the State's
No. 1-05-1141
regulation of his activities in this case; (2) section 16-8 of
the Code violates the due process clauses of the Illinois and
United States Constitutions; and (3) the evidence was
insufficient to prove his guilt beyond a reasonable doubt.
BACKGROUND
It was established at trial that after midnight on March 10,
2004, the defendant entered the Bubble Land laundromat at 5101
South Western Avenue in Chicago, where Valerie Herrera was
working as an attendant. Herrera testified the defendant
attempted to sell compact discs (CDs) for $5 and digital video
discs (DVDs) for $10 from a black suitcase while inside and
outside the laundromat. Herrera notified the police by
activating the laundromat's panic button.
Chicago police officer Tracy Hoover responded to the call
and testified that she and her partner parked their squad car
near the laundromat in an attempt to observe any transactions of
the defendant. During this surveillance, lasting approximately
10 minutes, Hoover observed two transactions where the defendant
and an individual exchanged money for what appeared to be CDs.
She could not see the titles.
Officer Hoover and her partner approached the defendant,
questioned him, and learned that he did not have a permit to sell
merchandise. Hoover estimated that there were between 250 and
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No. 1-05-1141
300 CDs and DVDs, which she perceived to be "fake," in the
defendant's suitcase. She recognized one DVD as that of the
movie "The Passion of the Christ," which was playing in movie
theaters at the time. She recognized certain CDs as those of
"rap artists." The CDs lacked the colorings that CDs purchased
from a store would have. Although the defendant's CDs were
wrapped in plastic, they were not heat-sealed and did not have
security tape on them. Hoover arrested the defendant and
inventoried the suitcase with the DVDs and CDs inside. At trial,
Hoover identified People's Group Exhibits 1-A through 1-C as
photocopies of photographs of CDs or DVDs the defendant had in
his possession.1
J. Martin Walsh, a former postal inspector and the current
supervisor of investigations for the Recording Industry
Association of America (RIAA), also testified at trial. At
approximately 11 a.m. on March 10, 2004, Walsh went to the Ninth
District police station, where he was shown a black suitcase
containing approximately 200 CDs. Walsh examined, "picked up"
and "looked" at, 10 to 20 of them. Defense counsel stipulated
that Walsh was "an expert in determining counterfeit DVDs [and]
CDs."
1
The exhibits are not in the record.
3
No. 1-05-1141
Walsh discussed three types of CD piracy: (1) counterfeits;
(2) piratical mixes; and (3) bootlegs.2 A "counterfeit CD"
results where an existing CD and the artwork from its covers are
duplicated. A "piratical mix" results where songs are taken from
different artists and put together as a compilation or "mix." A
"bootleg" is an unauthorized recording of a live concert.
According to Walsh, the discs he examined in the suitcase
were not actually CDs but instead were "compact disc recordables"
or "CDRs." Walsh looked to several factors in order to determine
whether they were counterfeits or pirates. First, while all
"legitimate" music is manufactured and distributed on pressed and
molded CDs, "illegal" music is "burned" onto CDRs. Second, while
CDs are manufactured at plants and contain artwork on their
covers, the defendant's CDRs contained photocopies of the covers,
which appeared faded and improperly cut. Third, the defendant's
CDRs did not have "the true name and address of the manufacturer
displayed on the cover." Fourth, while the center ring of CDs
has a "SID code," consisting of an "IFPI number" identifying the
plant where the CD was manufactured and a second IFPI number
identifying the master copy from which the CD was made, the
2
A fourth type of piracy involves music downloaded from the
Internet.
4
No. 1-05-1141
defendant's CDRs omitted this information. Fifth, while the
underside of a "legitimate" CD is silver, the underside of the
discs the defendant possessed had a bluish-green tint, indicating
they were CDRs.
According to Walsh, it is important to determine when
looking at a compilation disc whether any work of the "five major
labels" -- Universal, Sony, EMI, BMG, and Time-Warner -- is
included. According to Walsh, the five major labels covered
approximately 90% of the recording industry. The remaining 10%
are considered "independent" and are free to manufacture,
distribute, and sell their product "in any format and in any
arena." However, if a CDR contains 15 songs and one of them is
covered by a major label, the entire disc is illegal. The
following also transpired on direct examination.
"Q. Okay. When -- Did you have an
opportunity to examine on March 10, 2004, any
compilation disks?
A. Yes. I did.
Q. When you examined the compilation
disks, with regard to your determination of
whether or not it was a pirate, what did you
decide after looking at them?
A. Yes. Those were also illegal
5
No. 1-05-1141
copies. They were CDRs, and they contained
songs by artists that were covered by the
five major labels and clearly were not
authorized for this distribution."
Walsh also testified that while at the station, he examined
one CDR entitled "It's Too Short." The photocopied advertisement
label contained the trademark for Jive Records, a sublabel of an
RIAA major label. The disc lacked the identifying marks of a
legitimate CD. This indicated to Walsh that the CDR was
"illegally manufactured and [was] being distributed without at
the very least the proper labeling and certainly without the
consent of the licensee." Walsh identified People's Group
Exhibit 1-A as a photocopy of the disc and a photocopy of the
front and back covers of the recovered disc.
Walsh identified the second page of People's Group Exhibit
1-A as a photocopy of a CDR entitled "Too Short 2 B Married 2 Da
Game," also released on Jive Records. Walsh identified the disc
as a CDR because it contained the trademark for Hewlett-Packard,
a CDR manufacturer. The disc lacked any identifying markings in
its inner ring. In Walsh's opinion, the discs contained in
People's Group Exhibit 1-A were "counterfeit," "burned" copies.
Walsh identified page one of People's Group Exhibit 1-B as a
photocopy of the front and back covers of a disc entitled "Blood
6
No. 1-05-1141
in My Eye" by the artist Ja Rule, who is covered by one of the
labels the RIAA represents. Page two of the exhibit was a
photocopy of the actual disc, which was a CDR. In Walsh's
opinion, the disc contained in People's Group Exhibit 1-B was a
"counterfeit," "burned" copy.
Walsh identified People's Exhibit 1-C as a photocopy of the
back cover and CDR of a compilation of music by different
artists. Walsh determined that it was a pirated copy and that at
least five of the artists, including Ludacris and R. Kelly, were
covered by one of the major labels. In Walsh's opinion, the disc
contained in People's Exhibit 1-C was a "burned copy" and "a mix
of various artists" that was "piratical." According to Walsh,
none of the 10 to 20 discs that he examined on March 10, 2004,
were made with consent of the recording industry. Walsh was not
asked, and did not testify, about whether he listened to any of
the discs.
Walsh testified on cross-examination that he did not look at
all of the CDs in the defendant's suitcase, but viewed only a
sampling. Walsh also acknowledged that some CDRs, in certain
circumstances, are "legal." He additionally stated that although
he noticed that the suitcase contained DVDs, he "didn't look at
those." He also stated that he did not represent the Motion
Picture Association of America (MPAA).
7
No. 1-05-1141
The defendant moved for a directed finding of not guilty on
counts II and IV, charging the lack of consent on the part of the
MPAA, arguing that the State failed to present any testimony on
behalf of the MPAA. The trial court found Officer Hoover's
testimony that she saw a DVD entitled "The Passion of the
Christ," which was still in theaters, sufficient to prove lack of
consent and denied the motion.
The defense rested. In his closing argument, defense
counsel distinguished this case from a case involving a
controlled substance, arguing that although it is a crime in
Illinois to possess a controlled substance, with or without the
intent to sell, the statutes the defendant was charged with
violating only prohibited the intentional or knowing sale or
offering for sale of unauthorized or unidentified DVDs or CDs.
Mere possession of such DVDs or CDs was not a crime. Defense
counsel continued:
"Now the expert in this case has
testified that some CDRs are legal, and also
more importantly, judge, he didn't examine
the entire suitcase. There were some [200]
to 300 DVDs and CDs in that suitcase. He
looked at a sampling of them, and some of
them were bootleg. We don't contest that,
8
No. 1-05-1141
but possession of bootleg items is not a
crime.
And it's the State's responsibility,
it's their duty to prove beyond a reasonable
doubt that this defendant knowingly offered
for sale bootleg movies.
And since no one in this case saw or
heard any of the titles that were allegedly
offered for sale or sold and since the expert
in this case didn't examine the entire thing
to see if, perhaps, there were legal movies
in there, the State has not met their burden
of proving that this defendant offered for
sale sounds recorded.
All they've proven, judge, is that he
had some in his possession. Again I
reiterate possession is not a crime."
Defense counsel also argued the State failed to prove the
defendant knew the items in the suitcase "were bootleg," arguing
that the defendant was a street seller without the expertise of a
representative from the RIAA. The court rejected these arguments
and found the defendant guilty of all four counts. The defendant
was sentenced as indicated above, and this timely appeal
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No. 1-05-1141
followed.
ANALYSIS
At issue are sections 16-7 and 16-8 of the Code. Section
16-7, entitled "Unlawful use of recorded sounds or images," in
relevant part, states:
"(a) A person commits unlawful use of
recorded sounds or images when he:
(1) Intentionally, knowingly or
recklessly transfers or causes to be
transferred without the consent of the owner,
any sounds or images recorded on any sound or
audio visual recording with the purpose of
selling or causing to be sold, or using or
causing to be used for profit the article to
which such sounds or recordings of sound are
transferred.
(2) Intentionally, knowingly or
recklessly sells, offers for sale, advertises
for sale, uses or causes to be used for
profit any such article described in
subsection 16-7(a)(1) without consent of the
owner." 720 ILCS 5/16-7(a)(1), (a)(2) (West
2004).
10
No. 1-05-1141
Section 16-8, entitled "Unlawful use of unidentified sound
or audio visual recordings," in relevant part, states:
"(a) A person commits unlawful use of
unidentified sound or audio visual recordings
when he intentionally, knowingly, recklessly
or negligently for profit manufactures,
sells, distributes, vends, circulates,
performs, leases or otherwise deals in and
with unidentified sound or audio visual
recordings or causes the manufacture, sale,
distribution, vending, circulation,
performance, lease or other dealing in and
with unidentified sound or audio visual
recordings." 720 ILCS 5/16-8(a) (West 2004).
Section 16-7(b) sets forth definitions of the various terms
used in sections 16-7 and 16-8. "Owner" is defined as "the
person who owns the master sound recording on which sound is
recorded and from which the transferred recorded sounds are
directly or indirectly derived." 720 ILCS 5/16-7(b)(2) (West
2004). "Sound or audio visual recording" is defined as "any
sound or audio visual phonograph record, disc, pre-recorded tape,
film, wire, magnetic tape or other object, device or medium, now
known or hereafter invented, by which sounds or images may be
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No. 1-05-1141
reproduced with or without the use of any additional machine,
equipment or device." 720 ILCS 5/16-7(b)(3) (West 2004).
"Master sound recording" is defined as "the original physical
object on which a given set of sounds were first recorded and
which the original object from which all subsequent sound
recordings embodying the same set of sounds are directly or
indirectly derived." 720 ILCS 5/16-7(b)(4) (West 2004).
"Unidentified sound or audio visual recording" is defined as "a
sound or audio visual recording without the actual name and full
and correct street address of the manufacturer, and the name of
the actual performers or groups prominently and legibly printed
on the outside cover or jacket and on the label of such sound or
audio visual recording." 720 ILCS 5/16-7(b)(5) (West 2004).
"Manufacturer" is defined as "the person who actually makes or
causes to be made a sound or audio visual recording." 720 ILCS
5/16-7(b)(6) (West 2004). An affirmative defense to any charge
of unlawful use of recorded sounds or images exists where the
sounds or images are "public domain material." 720 ILCS 5/16-
7(i) (West 2004).
In addition to challenging the sufficiency of the evidence
to support his convictions, the defendant argues his convictions
for violating sections 16-7 and 16-8 are preempted by federal
copyright law and that section 16-8 violates due process. Our
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No. 1-05-1141
supreme court has instructed that "cases should be decided on
nonconstitutional grounds whenever possible" and that courts
should "reach[] constitutional issues only as a last resort." In
re E.H., 224 Ill. 2d 172, 178, 863 N.E.2d 231 (2006).
Consequently, the defendant's contention that the evidence was
insufficient to prove his guilt beyond a reasonable doubt on all
counts is addressed first.
I. Sufficiency of the Evidence
The defendant attacks the sufficiency of the evidence to
support his convictions in two ways. First, the defendant argues
that all four of his convictions must be reversed because the
State failed to prove the items in the suitcase actually
contained sound or audio visual recordings. Second, the
defendant contends that one of his convictions for violating
section 16-7 (count II) must be reversed because the State failed
to prove that he acted without consent of the MPAA.
When a defendant challenges the sufficiency of the evidence,
the issue is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. People v. Hagberg, 192 Ill. 2d 29, 33-34, 733
N.E.2d 1271 (2000); People v. Collins, 106 Ill. 2d 237, 261, 478
N.E.2d 267 (1985). When applying this standard, a reviewing
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No. 1-05-1141
court must construe all reasonable inferences from the evidence
in favor of the prosecution, regardless of the nature of the
evidence. People v. Bush, 214 Ill. 2d 318, 326, 827 N.E.2d 455
(2005).
Counts I and II of the information alleged the defendant
committed the offense of unlawful use of recorded sounds or
images (720 ILCS 5/16-7(a)(2) (West 2004)). Count I alleged the
defendant "intentionally or knowingly offered for sale any sounds
or images recorded on any sound or audio visual recording, to
wit: compact disc's [sic], without the consent of the owner to
wit: [the RIAA]." Count II alleged the same elements with regard
to DVDs but without consent of the MPAA.
Counts III and IV of the information alleged the defendant
committed the offense of unlawful use of unidentified sound or
audio visual recordings (720 ILCS 5/16-8 (West 2004)). Count III
alleged the defendant "intentionally or knowingly for profit
manufactured, sold, distributed, vended, circulated, performed,
leased or otherwise dealt in and with unidentified sound or audio
visual recordings, to wit: compact discs, without the consent of
the [RIAA]." Count IV alleged the same elements with regard to
"Compact Discs" without consent of the MPAA.3
3
The parties do not address the scrivener's error of the
14
No. 1-05-1141
The defendant first argues that all four of his convictions
must be reversed because the State failed to introduce any
evidence to prove that the discs he possessed actually contained
any recorded sounds or audio visuals. The defendant asserts that
although expert J. Martin Walsh testified he examined 10 to 20
CDRs, he never stated that he listened to any of them and offered
no testimony concerning the DVDs. The defendant also points out
that none of the CDRs or DVDs were played for the court or even
introduced at trial. Rather, the State introduced only
photocopies of the covers of the CDs and photocopies of the CDs
themselves. No tangible evidence was introduced regarding the
DVDs. The defendant analogizes this case to controlled substance
cases, such as Hagberg, 192 Ill. 2d at 34, and People v.
Armstrong, 65 Ill. App. 3d 680, 685, 382 N.E.2d 121 (1978), which
hold that the State must prove that the substance the defendant
is convicted of possessing or delivering is in fact a controlled
substance. The defendant contends that the State in this case
failed to prove the corpus delicti of the offense -- that actual
recordings were present on the discs.4
use of "Compact Discs," rather than "Digital Video Discs," in
count IV.
4
The defendant acknowledges that "[w]hile the sale of blank
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No. 1-05-1141
To support its theory that the evidence was sufficient, the
State primarily relies on Herrera's testimony establishing that
the defendant was offering to sell CDs and DVDs to customers of
the laundromat and Walsh's testimony establishing that he
examined 10 to 20 discs and concluded they "contained songs by
artists that were covered by the five major labels." At oral
argument, the State contended that the cumulative impact of this
circumstantial evidence, along with defense counsel's concession
during closing argument that the defendant's items were
"bootleg," was sufficient to prove the defendant's guilt beyond a
reasonable doubt.
Walsh, a conceded expert in determining counterfeit CDs,
testified that the defendant's CDs were actually CDRs that
"contained songs by artists that were covered by the five major
labels." It is not clear from Walsh's testimony whether his
conclusion that the CDRs "contained songs" rests solely on his
physical examination of the discs, as the defendant argues, or
whether he actually listened to the recorded sound itself.
discs which purport to be sound or audio visual recordings may
subject an individual to criminal liability under another
statute, it would not subject an individual to criminal liability
under either of the statutes in question here."
16
No. 1-05-1141
Walsh's testimony supports either inference. As a reviewing
court, we must consider the evidence in the light most favorable
to the State and allow all reasonable inferences in its favor.
Bush, 214 Ill. 2d at 326. With this view of the evidence in
mind, we need only determine whether " 'any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.' " (Emphasis in original.) Bush, 214 Ill. 2d
at 326, quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L.
Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979).
The State's evidence established seven incriminating facts:
(1) the defendant represented to customers of the laundromat that
the CDs and DVDs he was offering for sale contained music, i.e.,
sounds, or movies, i.e., audio visuals; (2) one CD purported to
be a copy of "Too Short 2 B Married 2 Da Game," another purported
to be a copy of "Blood in My Eye" by Ja Rule, and one listed
artists such as Ludacris and R. Kelly; (3) 10 to 20 of his CDs
were examined by Walsh, an expert in determining counterfeit CDs;
(4) the examined CDs were not in fact CDs, but instead were CDRs;
(5) at least one examined CDR purportedly "contained songs by
artists that were covered by the five major labels"; (6) none of
the examined CDRs were made with the consent of the recording
industry; and (7) the examined CDRs were without the proper
listing of the actual manufacturer, i.e., the transferor.
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No. 1-05-1141
Defense counsel did not dispute that the State proved the
existence of recorded sounds in his closing argument, and even
stated that "some of them were bootleg. We don't contest that,"
and conceded that the State proved the defendant "had some
[recorded sounds] in his possession." Additionally, the medium
in the possession of the defendant -- recordable CDs -- supports
the inference that the discs contained sound recordings. This
evidence, when considered in the light most favorable to the
State, and in the course of common reasoning and logic, was
sufficient to support the existence of sound recordings. We
therefore conclude the State proved that the CDs the defendant
possessed contained sound recordings as alleged and that the
evidence was sufficient to support the defendant's convictions
under counts I and III of the information in that the defendant
knowingly offered for sale recorded sounds on discs without
consent of the RIAA and the recorded sounds were "unidentified"
as the actual name of the manufacturer was not the manufacturer
listed on the covers.
The State, however failed to prove that the DVDs in the
possession of the defendant contained recorded images.
Significantly, Walsh did not examine any of the defendant's DVDs
and offered no testimony concerning their appearance or whether
he believed they were counterfeit. Officer Hoover's testimony
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No. 1-05-1141
that she saw a DVD in the defendant's suitcase of "The Passion of
the Christ," without any further description of the appearance of
the actual DVD, amounts to no more than a description of what may
have been the photocopied advertisement cover. Walsh and Officer
Hoover identified each of the exhibits introduced by the State as
having photocopied covers, identifying the CDs within. This
appears to be the method of packaging for the CDs. No evidence
was introduced that the packaging for the DVDs was any different.
Unlike the CDs, no exhibit regarding any of the DVDs was
presented to the trial court. Based on Officer Hoover's single
ambiguous statement that she observed a DVD among the CDs, there
is even a question whether an actual DVD was present inside the
DVD packaging and on which was actually recorded the Mel Gibson
film. The fact finder was given no other evidence from which to
infer this element. Walsh, as a stipulated expert on both
counterfeit CDs and DVDs, provided no testimony as to identifying
counterfeit DVDs as he did for CDs. In fact, the substantial
evidence introduced regarding the CDs makes pale by comparison
the evidence supporting the defendant's convictions as to the
DVDs. We decline to uphold the defendant's convictions regarding
the MPAA without additional evidence. We conclude the evidence
was insufficient to support the defendant's convictions under
counts II and IV.
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No. 1-05-1141
II. Preemption Claim
We next address whether the defendant's remaining
convictions for violating sections 16-7(a)(2) (count I) and 16-8
(count III) of the Code are null and void because the federal
Copyright Act preempts the State's regulation of his activities
in this case.5 Contrary to the State's argument, the defendant's
failure to raise this issue in the trial court does not render
his contention forfeited, as "[a]n argument that an order or
judgment is void is not subject to waiver." People v. Thompson,
209 Ill. 2d 19, 27, 864 N.E.2d 758 (2004); see also People v.
Mata, 217 Ill. 2d 535, 546, 842 N.E.2d 686 (2005) (state law is
"without effect" if preempted by federal law).
5
Because the issue was not presented, we do not consider
whether count III under section 16-8 is an included offense of
count I under section 16-7(a)(2). See People v. Zakarian, 121
Ill. App. 3d 968, 976, 460 N.E.2d 422 (1984) ("we find that
section 16-8, unlawful use of unidentified sound recordings, is
an included offense of section 16-7(a)(2)"), overruled on other
grounds, People v. Perry, 224 Ill. 2d 312, 864 N.E.2d 196 (2007).
Nor do we consider the significance of the additional burden
assumed by the State in count III that the unlawful use occurred
"without the consent of the [RIAA]."
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No. 1-05-1141
Whether state law is preempted by federal statute is a
question of law reviewed de novo. Kinkel v. Cingular Wireless,
LLC, 223 Ill. 2d 1, 15, 857 N.E.2d 250 (2006). Our de novo
review begins with the presumption "that Congress did not intend
to displace state law. [Citation.]" Village of Frankfort v.
Environmental Protection Agency, 366 Ill. App. 3d 649, 659, 852
N.E.2d 522 (2006). Whether federal law preempts state law is a
question of congressional intent. People v. Chicago Magnet Wire
Corp., 126 Ill. 2d 356, 361, 534 N.E.2d 962 (1989). "Congress'
intent to preempt State law may be manifested 'by express
provision, by implication, or by a conflict between federal and
state law.' " Busch v. Graphic Color Corp., 169 Ill. 2d 325,
335, 662 N.E.2d 397 (1996), quoting New York State Conference of
Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514
U.S. 645, 654, 131 L. Ed. 2d 695, 704, 115 S. Ct. 1671, 1676
(1995).
The defendant contends that the federal Copyright Act
expressly "preempts Illinois' regulation of [the defendant's]
activities in this case, [and, therefore,] his convictions under
720 ILCS 5-16-7(a) and 720 ILCS 16-8 are null and void." Where
Congress "explicitly mandates the preemption of State law within
a stated situation," a reviewing court need not look beyond the
statutory language to determine whether the state law is
21
No. 1-05-1141
preempted. Chicago Magnet Wire Corp., 126 Ill. 2d at 361.
Pursuant to the constitutional authority granted through the
copyright clause (U.S. Const., art. I, §8, cl. 8), Congress
enacted the Copyright Act of 1976 (the Act) (17 U.S.C. §101 et
seq. (2000)). Section 102 of the Act grants copyright protection
to "original works of authorship fixed in any tangible medium of
expression," including literary works, musical works, motion
pictures and other audio visual works, and sound recordings.6 17
U.S.C. §102(a) (2000). Section 106 grants copyright owners the
exclusive right to reproduce, distribute, perform, and display
the copyrighted work, and to prepare derivative works. 17 U.S.C.
§106 (2000). Copyright infringement may be prosecuted criminally
under section 506 of the Act. 17 U.S.C. §506 (2000).
Section 301(a) of the Act states:
"On and after January 1, 1978, all legal
or equitable rights that are equivalent to
any of the exclusive rights within the
general scope of copyright as specified by
6
In general, only sound recordings fixed on or after
February 15, 1972, are subject to federal statutory copyright
protection. See Goldstein v. California, 412 U.S. 546, 552, 37
L. Ed. 2d 163, 171, 93 S. Ct. 2303, 2307 (1973).
22
No. 1-05-1141
section 106 in works of authorship that are
fixed in a tangible medium of expression and
come within the subject matter of copyright
as specified by sections 102 and 103, whether
created before or after that date and whether
published or unpublished, are governed
exclusively by this title. Thereafter, no
person is entitled to any such right or
equivalent right in any such work under the
common law or statutes of any State." 17
U.S.C. §301(a) (2000).
The defendant argues his prosecution for violating sections
16-7(a)(2) and 16-8 of the Code are preempted by the express
language in section 301(a) of the Act. Sections 16-7 and 16-8
arose from House Bill 1357 and were added to the Code with little
comment from the legislature by Public Act 79-456 (Pub. Act 79-
456, eff. August 14, 1975), prior to the enactment of the 1976
Copyright Act. It has been noted that by the 1970s, the spread
of record piracy "had motivated about one half of the state
legislatures *** to adopt criminal statutes prohibiting [record]
piracy. [Citation.]" Capitol Records, Inc. v. Naxos of America,
Inc., 4 N.Y.3d 540, 555, 797 N.Y.S.2d 352, 362, 830 N.E.2d 250,
260 (N.Y. 2005). This court has found that "the intent of the
23
No. 1-05-1141
legislature in enacting sections 16-7 and 16-8 was to prohibit
and punish sound recording piracy." People v. Zakarian, 121 Ill.
App. 3d 968, 975, 460 N.E.2d 422 (1984), overruled on other
grounds, People v. Perry, 224 Ill. 2d 312, 864 N.E.2d 196 (2007).
Indeed the legislature, when discussing a 1990 amendment to
sections 16-7 and 16-8, noted the statutes were "designed to get
at pirateers." 86th Ill. Gen. Assem., House Proceedings, June
25, 1990, at 40 (statements of Representative Countryman). It
was the spread of record piracy, and the states' reactions to it,
that also prompted Congress to amend the 1909 Copyright Act to
provide federal protection for sound recordings, or at least to
those fixed on or after February 15, 1972. Capitol Records,
4 N.Y.3d at 555, 797 N.Y.S.2d at 362, 830 N.E.2d at 260.
Numerous courts, including this one, have construed section
301(a) as requiring the preemption of state statutory or common
law claims where: (1) the works at issue are fixed in tangible
form and fall within the "subject matter of copyright" as defined
in section 102 of the Act (the subject matter prong); and (2) the
legal or equitable rights granted under the state law are
equivalent to the exclusive rights set forth in section 106 of
the Act (the equivalency prong). Chicago Style Productions, Inc.
v. Chicago Sun Times, Inc., 313 Ill. App. 3d 45, 47, 728 N.E.2d
1204 (2000), citing Baltimore Orioles, Inc. v. Major League
24
No. 1-05-1141
Baseball Players Association, 805 F.2d 663 (7th Cir. 1986); Bilut
v. Northwestern University, 296 Ill. App. 3d 42, 52, 692 N.E.2d
1327 (1998); see also Crow v. Wainwright, 720 F.2d 1224, 1225-26
(11th Cir. 1983).
As to the subject matter prong of the preemption test of
section 301(a), the sound recordings at issue in this case are
unquestionably fixed in tangible form and those by modern artists
such as Ja Rule and Ludacris are of such recent vintage as to
unquestionably fall within the subject matter of copyright. 17
U.S.C. §102(a)(7) (2000).
When addressing the equivalency prong, we look to the nature
of the right involved: "a right is equivalent to one of the
rights comprised by a copyright if it 'is infringed by the mere
act of reproduction, performance, distribution or display.' "
Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n,
805 F.2d 663, 677 (7th Cir. 1986), quoting M. Nimmer, Nimmer on
Copyright §1.01(B)(l) (1985). To determine whether a preemption
challenge premised on the equivalency of protected rights is
successful, courts apply the so-called "extra element test."
This test asks whether the state law requires an additional
element that is qualitatively different from those necessary for
copyright infringement. Chicago Style Productions, Inc., 313
Ill. App. 3d at 47. Put somewhat differently, courts question
25
No. 1-05-1141
whether the state law "regulate[s] conduct that is qualitatively
distinguishable from that governed by federal copyright law --
i.e., conduct other than reproduction, adaptation, publication,
performance, and display." Toney v. L'Oreal USA, Inc., 406 F.3d
905, 910 (7th Cir. 2005).
Before addressing whether the statutes at issue contain an
extra element sufficient to save them from preemption, we address
the State's contention that the extra element test does not
properly function in the context of state criminal prosecutions.
According to the State, the terms used in section 301(a) --
"legal or equitable rights" and a "person's entitlement" -- are
"absolutely inaccurate in the context of criminal proceedings."
The State also points out that the power to prosecute criminal
actions has historically been reserved to the states. The State
argues that Congress, in enacting section 301(a), did not intend
to prohibit the states from enforcing criminal laws such as those
at issue in this case.
We disagree. First, the legislative history of section 301
indicates that it is to be construed as a broad, express
preemption provision. See H.R. Rep. No. 94-1476, at 130 (1976),
as reprinted in _____U.S.C.C.A.N. _____,_____. ("[t]he
declaration of this principle in section 301 is intended to be
stated in the clearest and most unequivocal language possible, so
26
No. 1-05-1141
as to foreclose any conceivable misinterpretation of its
unqualified intention that Congress shall act preemptively").
Congress's purpose in enacting section 301 was to adopt "a single
system of Federal statutory copyright from creation," rather than
the "dual system of 'common law copyright' for unpublished works
and statutory copyright for published works" that existed under
the former 1909 Copyright Act. H.R. Rep. No. 94-1476, at 129
(1976), as reprinted in _____U.S.C.C.A.N. _____,_____. The
legislative history of section 301 has been interpreted as
"clearly evidenc[ing] Congress' intent to overrule" cases such as
Goldstein v. California, 412 U.S. 546, 37 L. Ed. 2d 163, 93 S.
Ct. 2303 (1973), which held that the 1909 Act preempted only
state laws, including criminal laws, conflicting or interfering
with the federal statute's provisions. Crow, 720 F.2d at 1225.
Second, the weight of the authority leads us to conclude
that Congress intended to preempt state criminal, as well as
civil, actions when it reenacted section 301 in 1976. See
Anderson v. Nidorf, 26 F.3d 100, 102 (9th Cir. 1994); Crow, 720
F.2d at 1226; Briggs v. State, 281 Ga. 329, 331, 638 S.E.2d 292,
295 (2006); Hicks v. State, 109 Md. App. 113, 124, 674 A.2d 55,
61 (1996); People v. Borriello, 588 N.Y.S.2d 991, 994, 155 Misc.
2d 261, 265 (1992); State v. Perry, 83 Ohio St. 3d 41, 43, 697,
N.E.2d 624, 627 (1998); State v. Awawdeh, 72 Wash. App. 373, 376,
27
No. 1-05-1141
864 P.2d 965, 967 (1994) (each invoking the extra element test to
decide whether preemption applied). Although not every court
that has addressed the issue of preemption of a state statute has
found preemption, each court has impliedly concluded that the
preemption rule in section 301 was intended to apply to state
criminal prosecutions. Additionally, a noted authority on
copyright law has concluded that state criminal piracy laws are
preempted by the federal statute:
"[S]tate record piracy laws are pre-empted in
their application to [sound recordings fixed
on or after February 15, 1972,] under the
rule set forth in Section 301(a). That is,
such record piracy statutes postulate rights
'equivalent' to copyright in that they
proscribe reproduction and/or distribution,
and they apply to works that fall 'within the
subject matter of copyright' as specified by
Section 102(a)(7)." 1 M. Nimmer & D. Nimmer,
Nimmer on Copyright §1.01(B)(2)(d), at 1-59
(April 2007).7
7
Numerous state antipiracy laws expressly apply only to
sound recordings fixed prior to February 15, 1972. See Cal.
28
No. 1-05-1141
Third, the case upon which the State primarily relies to
give us guidance as to its contention that state criminal actions
cannot be preempted by federal law, Chicago Magnet Wire Corp.,
126 Ill. 2d 356, is inapposite in that it deals with applying
long-recognized criminal behavior in the context of workplace
exposure to toxic substances that were also subject to
regulations by the federal Occupational Safety and Health Act
(OSHA) (28 U.S.C §651 et seq. (2000)). Cf. State v. Smith, 115
Wash. 2d 434, 798 P.2d 1146 (1990) (theft prosecution not
preempted by federal copyright law). This case, on the other
hand, involves state statutes that were specifically enacted to
address the problem of "record piracy" by prohibiting the
unauthorized distribution and reproduction of recordings not
within the public domain -- a matter which has generally been
left to federal regulation as authorized by the Copyright Clause
of the federal constitution. Moreover, as addressed above, the
legislative history of section 301 indicates Congress's purpose
was to federalize copyright regulation and to "foreclose any
conceivable misinterpretation of its unqualified intention that
Congress shall act preemptively." H.R. Rep. No. 94-1476, at 130
Penal Code §653h(i) (West 2004); Md. Code Ann. Criminal Law §7-
308(b)(1) (West 2004); N.Y. Penal Law §275.25 (McKinney 2004).
29
No. 1-05-1141
(1976), as reprinted in _____U.S.C.C.A.N. _____,_____.
We therefore reject the State's contention that Congress did
not intend to preempt state criminal statutes when it reenacted
section 301. Accordingly, we turn to whether sections 16-7(a)(2)
and 16-8 contain an extra element sufficient to save them from
preemption.
A. Section 16-7(a)(2)
Section 16-7(a)(2) does not require any additional element
that qualitatively distinguishes it from copyright infringement.
Notably, the State does not contend otherwise. Section 16-
7(a)(2) forbids, among other things, the intentional, knowing, or
reckless sale or use for profit of any sound or audio visual
recording without consent of the owner of the master sound
recording. It is an affirmative defense if the sounds or images
are within the public domain. It is clear that in enacting
section 16-7(a)(2), the legislature sought to criminalize record
piracy -- that is, to prohibit the unauthorized reproduction or
distribution of sound or audio visual recordings. Consequently,
it is preempted by the federal Copyright Act. See Borriello, 588
N.Y.S.2d at 994-96, 155 Misc. 2d at 265-68 (the defendant's
prosecution for violating a New York antipiracy statute was
preempted by section 301 where the statute dealt exclusively with
distribution and prohibited matters related to distribution); see
30
No. 1-05-1141
also Perry, 83 Ohio St. 3d at 45, 697 N.E.2d at 628 (the
prosecution of an Ohio statute prohibiting the unauthorized
uploading, downloading and posting of computer software was
preempted by the Copyright Act because the activities the statute
prohibits "are unauthorized uses governed by the copyright
laws").
We recognize that section 16-7(a)(2) requires a criminal
mental state, a matter not within the general scope of copyright.
However, a criminal mental state has not been considered
sufficient to qualify as an extra element. See Crow, 720 F.2d at
1226 (holding the additional element of scienter did not
distinguish the federal theft statute at issue in that case from
the tort of copyright infringement because the federal statute
requires scienter, and because scienter "merely narrows the
applicability of the statute"); Borriello, 588 N.Y.S.2d at 995,
155 Misc. 2d at 266 ("[d]iffering mens rea elements, such as
'awareness' or 'intent' will not provide the 'extra element' to
take it out of a copyright infringement claim"); see also M.
Nimmer & D. Nimmer, Nimmer on Copyright §1.01(B)(1), at 1-12
(April 2007) ("in essence, a right that is 'equivalent to
copyright' is one that is infringed by the mere act of
reproduction, performance, distribution, or display. *** [T]he
mere fact that a state law requires scienter as a condition to
31
No. 1-05-1141
liability, whereas the Copyright Act does not, cannot save the
state law from pre-emption"). The statute's provision that the
defendant use the recording or cause the recording to be used
"for profit" similarly does not qualify as an extra element, as
one form of criminal infringement under the federal Act requires
a defendant to act "for purposes of commercial advantage or
private financial gain." 17 U.S.C. §506(a)(1)(A) (2000). We
therefore conclude the defendant's prosecution for violating
section 16-7(a)(2) is preempted by the federal Copyright Act.
B. Section 16-8
Section 16-8, however, is not preempted. Under count III,
the defendant was charged with violating section 16-8 by engaging
in unlawful use of unidentified sound recordings. A recording
can be "unidentified" in either of two ways: by the absence of
the name and address of the actual manufacturer of the sound
recording (see Zakarian, 121 Ill. App. 3d at 976 (where, at the
time a violation of section 16-8 was a Class B misdemeanor, the
court noted that persons dealing with counterfeit identified
recordings "may be considered more culpable than those ***
dealing with unidentified sound recording who do not have similar
information at hand")), or by the listing of a manufacturer that
is not the actual or true manufacturer of the sound recording.
In this case, the State was required to prove that the defendant
32
No. 1-05-1141
was dealing in CDs that did not have "on the outside cover or
jacket and on the label" the actual name of the manufacturer.
720 ILCS 5/16-7(b)(5) (West 2004). This element makes the
offense " 'qualitatively' different from a copyright
infringement-type activity and distinguishing the underlying
rights from those addressed by copyright law [so that it will]
not be deemed 'equivalent' [citation]." Borriello, 588 N.Y.S.2d
at 994, 155 Misc. 2d at 265. The crucial element of this offense
is that the cover, jacket or label is in a deceptive condition by
the absence of the actual name of the manufacturer. No
infringement of the rights of the copyright owner is necessary.
In fact, as a New York court noted in finding a similar state
statute not preempted by the federal Copyright Act, this
provision can be violated even if the person dealing in such
unidentified recordings has "permission and authority to sell the
recording from the copyright owner." Borriello, 588 N.Y.S.2d at
996, 155 Misc. 2d at 268. Thus, the protection afforded by
section 16-8 is not to the copyright owner, but to the
prospective consumer of the sound recording. Our legislature has
determined that consumers of such recordings are entitled to be
informed of the "actual name and address of the manufacturer" and
mandates, subject to a criminal penalty, that such information be
prominently displayed on the packaging of the CD. In this case,
33
No. 1-05-1141
the defendant was charged with unlawful use of unidentified sound
recordings in that the manufacturer listed on the photocopy of
the CD covers was not the actual manufacturer of the CDRs he was
dealing in. As we have previously found, the evidence was
sufficient to sustain this charge.
Section 16-8 thus incorporates an extra element beyond those
encompassed within section 106 of the Act and, consequently, is
not preempted. See Anderson, 26 F.3d at 102; Briggs, 281 Ga.
App. at 331, 638 S.E.2d at 295; Hicks, 109 Md. App. at 125, 674
A.2d at 62; Borriello, 588 N.Y.S.2d at 996, 155 Misc. 2d at 268;
Awawdeh, 72 Wash. App. at 377, 864 P.2d at 968. Our holding is
consistent with courts from other jurisdictions that have
construed such "packaging" statutes as consumer protection
statutes that serve interests qualitatively different from those
served by the federal copyright laws. See Anderson, 26 F.3d at
102; Borriello, 588 N.Y.S.2d at 996, 155 Misc. 2d at 268;
Awawdeh, 72 Wash. App. at 377, 864 P.2d at 968 (all noting that
the packaging statutes at issue were consumer protection statutes
intended to protect the public from false and deceptive
commercial practices). Our reading of section 16-8, in light of
similar statutes from other states, makes clear that our
legislature had similar consumer protection goals in mind when it
enacted section 16-8.
34
No. 1-05-1141
Accordingly, we conclude the defendant's remaining
conviction under count three for violating section 16-8 is not
preempted by federal copyright law.
III. Due Process Claim
We next address the defendant's contention that section 16-8
violates substantive due process because it "sweeps too broadly
by punishing innocent conduct." His argument is founded on his
claim that the statute lacks "a culpable intent, [so that] the
statute violates due process and is void." The constitutionality
of a statute is reviewed de novo. People v. Jones, 223 Ill. 2d
569, 596, 861 N.E.2d 967 (2006). Whether a statute, not
affecting fundamental rights, complies with substantive due
process is determined under the rational basis test. People v.
Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755 (2000). A statute will
be upheld under this test where "it 'bears a reasonable
relationship to a public interest to be served, and the means
adopted are a reasonable method of accomplishing the desired
objective.' " Wright, 194 Ill. 2d at 24, quoting People v.
Adams, 144 Ill. 2d 381, 390, 581 N.E.2d 637 (1991). A statute
violates the rational basis test where it could be used to punish
innocent conduct. Wright, 194 Ill. 2d at 28.
The defendant relies on cases such as Wright, 194 Ill. 2d 1,
740 N.E.2d 755, People v. Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797
35
No. 1-05-1141
(1994), People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676 (1985),
and People v. Carpenter, 368 Ill. App. 3d 288, 856 N.E.2d 551
(2006), appeal allowed, 222 Ill. 2d 611, 862 N.E.2d 235 (2007),
to support his contention that section 16-8 violates due process
because the statute "does not require, as an element of the
offense, that the manufacture or sale of a sound or audio visual
recording be made without the consent of the owner or be done
with a fraudulent purpose."
While it is true that proof of the lack of consent of the
owner is not required under section 16-8,8 we perceive no due
process requirement that culpable intent turn solely on the
absence of consent of the copyright owner. In fact, it is the
absence of that element that qualitatively distinguishes the
rights protected by section 16-8 from the underlying rights
addressed by copyright law. See Borriello, 588 N.Y.S.2d at 996,
155 Misc. 2d at 268 (a violation of consumer protection provision
8
While the State charged this element in count IV, we agree
with the defendant, based on the language in section 16-8, that
lack of consent of the owner is not an element of the offense.
But see 2 J. Decker, Illinois Criminal Law §11.28, at 11-41 (2d
ed. 1995) (stating "without authorization of the owner" is an
element of section 16-8).
36
No. 1-05-1141
may occur even with permission of the copyright owner). If lack
of consent were an element of the offense, section 16-8 would,
for all practical purposes, be indistinguishable from section 16-
7(a)(2), which we have found to be preempted. Under section 16-
7(a)(2), lack of consent of the owner is an element of the
offense. If there is lack of consent of the owner of the "master
of the sound recording" (720 ILCS 5/16-7(b)(2) (West 2004)), then
it necessarily follows the manufacturer of any such sound
recordings would not be authorized by the owner of the master
recording (720 ILCS 5/16-7(h)(West 2004)) to produce such
recordings. A person selling such discs from that manufacturer
would violate section 16-7(a)(2) if he knowingly sells for profit
such sound recordings because they would be without consent of
the owner, whether with or without the actual name and address of
the manufacturer on the packaging. In the case where the actual
name and address of the manufacturer are not on the packaging, a
person that knowingly sells such discs would also violate section
16-8 under the defendant's added element theory. In the first
instance, the discs offered for sale would be counterfeit
recordings in violation of section 16-7(a)(2) that may also be
"unidentified"; in the second instance, the discs offered for
sale would be "unidentified" recordings in violation of section
16-8 that would also necessarily be counterfeit. Thus, if lack
37
No. 1-05-1141
of consent were to provide the "culpable intent" of section 16-8
to pass the defendant's due process test, a violation of that
provision would be a violation of section 16-7(a)(2) and thus,
equivalent to, or qualitatively the same as, the protection
afforded by the federal Copyright Act. Adding such an element
would provide a basis to challenge under a preemption claim
section 16-8 with lack of consent as an element. In that
instance, the protection afforded by section 16-8 would go to the
benefit of the copyright holder and only secondarily to the
consumer. We are not persuaded that due process requires that
section 16-8 have a culpable mental state based on the absence of
consent of the copyright owner as the defendant urges.
Nonetheless, we examine section 16-8 as written to determine
whether it is a reasonable method of accomplishing the desired
objective of the legislation, without "the capacity to sweep in
innocent people who could reasonably believe they were engaging
in lawful activity." Carpenter, 368 Ill. App. 3d at 297.
The cases upon which the defendant relies have what has been
described as "[a] common theme" running through them. Carpenter,
368 Ill. App. 3d at 297. "Each statute had the capacity to sweep
in innocent people who could reasonably believe they were
engaging in lawful activity. That is, the acts that comprised
the offenses were not necessarily criminal in nature. The
38
No. 1-05-1141
statutes did not accomplish their legislative purpose."
Carpenter, 368 Ill. App. 3d at 297.
In Zaremba, the supreme court identified the fault with the
theft-related legislation as the absence of a culpable mental
state, beyond the knowing possession of the stolen item itself.
Under the challenged provision, even a law enforcement official
would violate the provision in the course of carrying out his
duty. The provision "would criminalize the actions of a police
evidence technician who took from a police officer for
safekeeping the proceeds of a theft." Zaremba, 158 Ill. 2d at
38. Thus, the court determined that the legislation would
"potentially subject[] wholly innocent conduct to punishment."
Zaremba, 158 Ill. 2d at 42. In other words, the method used to
further the interest "of breaking up fencing operations" cast too
great a net as to capture wholly innocent conduct. Zaremba, 158
Ill. 2d at 43.
In Wick, the supreme court considered a due process
challenge to the aggravated arson statute. The unlawful purpose
required for simple arson was not required for aggravated arson.
Wick, 107 Ill. 2d at 64. In its analysis the court noted, "proof
of the elements of aggravated arson cannot themselves constitute
proof of arson." Wick, 107 Ill. 2d at 65. Ultimately, the court
concluded that the absence of the requirement of proof of an
39
No. 1-05-1141
unlawful purpose in setting a fire (as is required in simple
arson), "sweeps too broadly by punishing innocent as well as
culpable conduct in setting fires." Wick, 107 Ill. 2d at 66.
Once again, as in Zaremba, the reach of the aggravated arson
statute went beyond the criminal conduct defined by simple arson
to reach innocent conduct. The "method" chosen by the
legislature to combat arsonists swept too broadly in that the set
of activities penalized by the aggravated arson statute was much
greater than the set of activities penalized by the simple arson
statute.
In Carpenter, part of the challenge to the statute at issue
was that "it requires no criminal mental state and potentially
punishes innocent conduct." Carpenter, 368 Ill. App. 3d at 294.
The purpose behind the legislation was "to stop the use of
vehicular secret compartments to hide guns, narcotics, and other
contraband." Carpenter, 368 Ill. App. 3d at 295. Against the
State's contention that the legislation would not punish
individuals that conceal lawful items, this court found that the
legislation would also penalize individuals that used "concealed
compartments to keep legally possessed items from the view of law
enforcement officer [even though such individuals had] no
criminal purpose." Carpenter, 368 Ill. App. 3d at 295. The
fault with this legislation was that it "had the capacity to
40
No. 1-05-1141
sweep in innocent people who could reasonably believe they were
engaging in lawful activity." Carpenter, 368 Ill. App. 3d at
297. There again, the set of activities the secret compartment
statute sought to penalize went beyond dealing "with illegal
contraband." Carpenter, 368 Ill. App. 3d at 295.
Finally, in Wright, the supreme court addressed the
constitutionality of a section of the Illinois Vehicle Code that
made it a felony to knowingly fail to maintain records relating
to the acquisition and disposition of vehicles and parts. The
court found that the legislative purpose in enacting the statute
was to combat the transfer or sale of stolen vehicles or parts.
However, because the statute potentially punished innocent
conduct, such as the failure to maintain records due to
disability, family emergency, or incompetency, the court found it
was not reasonably designed to serve that legislative purpose.
Wright, 194 Ill. 2d at 28. Once again, the fault in the
legislation was that the method selected to combat stolen
vehicles or parts would reach a greater set of activities -
conduct that had nothing to do with either stolen vehicles or
parts - than the set of activities the legislation was aimed at
combating.
Against the background of these cases, we address the
defendant's due process claim that section 16-8 may potentially
41
No. 1-05-1141
punish innocent conduct. According to the defendant, the
legislature's purpose in enacting section 16-8 was "to protect
the rights of owners of sound or audio visual recordings from
theft or misappropriation."
While it is true the interests that sections 16-7 and 16-8
were enacted to protect include the rights of owners of sound
recordings from theft or misappropriation, sections 16-7 and 16-8
each serve a different function in the overall scheme of the
legislation. The focus of protection afforded by section 16-7 is
on the owner of the copyright holder. One cannot transfer
(section 16-7(a)(1)) or offer for sale (section 16-7(a)(2)) sound
recordings without consent of the owner. The focus of section
16-8, on the other hand, is to protect the consumer from buying
what is represented to be an authorized sound recording when the
packaging of the sound recording fails to provide the
legislatively mandated information that defines an authorized
sound recording. Because section 16-8 is a consumer protection
statute, a violation of the section 16-8 turns on the information
provided on the packaging of the sound recordings. While section
16-8 may also serve to protect the rights of owners of sound
recordings, it does so indirectly, by seeking to protect
consumers from being sold deceptive CDs.
In each of the cases set out above, the method adopted by
42
No. 1-05-1141
the legislature captured activities that were outside the set of
criminal activities the legislation was meant to penalize. In
fact, "the acts that comprised the offenses were not necessarily
criminal in nature." Carpenter, 368 Ill. App. 3d at 297. The
courts identified such "acts" as lacking a "culpable mental
state." Adding a culpable mental state would have narrowed the
set of activities punished by the challenged legislation to
criminal conduct. Here, however, the set of criminal activities
the legislation was meant to penalize is identical to the
activities captured by section 16-8. The desired objective is to
punish dealings in "unidentified" sound recordings. Sound
recordings are unidentified when the packaging fails to identify
the actual manufacturer. Requiring that the packaging of CDs (or
CDRs for that matter) placed into the market stream "for profit"
accurately identify the manufacturer of the CDs is a reasonable
method to accomplish the desired objective of protecting the
interest of consumers in the course of buying sound recordings.
The method used to protect the interest of consumers of sound
recordings captures activities that are no more or no less than
the prohibited dealings in "unidentified sound recordings." The
reach of the statute is no greater than the desired goal. By
statutory definition, no truly innocent conduct is captured by
the method selected to accomplish the desired objective. We are
43
No. 1-05-1141
unpersuaded that there exists a method more reasonable to
accomplish the legislative objective than that which the
legislature has decided upon. A culpable mental state beyond
that which section 16-8 requires is unnecessary because by
statutory definition those that deal in "unidentified" recordings
are necessarily engaged in acts that are criminal in nature; they
are not engaged in wholly innocent conduct.
The defendant posits the hypotheticals of a home-produced
DVD by parents of a "charming and vivacious toddler" that the
parents plan to distribute for profit and of the independent
performer seeking to sell her own CDs, each of whom knowingly9
fails to identify themselves or herself as the manufacturer and
performer in the packaging of the audio visual or sound
recordings as examples of innocent conduct captured by section
16-8. While we cannot deny that the dealing in either such
improperly packaged DVDs or CDs would expose the parents or
independent performer to literal violations of section 16-8, we
recognize as well that "[t]he legislature is granted broad
9
The defendant used the mental state of "negligently" in
his brief. Section 16-8 includes the mental states of
intentionally and knowingly. The defendant does not suggest that
his argument turns on the use of "negligently."
44
No. 1-05-1141
discretion in defining crimes and affixing their punishment."
People v. Arna, 168 Ill. 2d 107, 114, 658 N.E.2d 445 (1995). In
the course of balancing the interests between consumers and
independent performers seeking to vend their recordings, the
legislature has sided with the consumer. As previously noted in
our discussion of the claimed preemption of section 16-8, this
type of consumer protection provision can be violated even "if
the transferor has permission and authority to sell the recording
from the copyright owner if the labels or packages are
deceptive." Borriello, 588 N.Y.S.2d at 996, 155 Misc. 2d at 268.
Those are the strictures of the law passed by our legislature.
While the sanctions imposed are criminal sanctions, it is not
within our purview to question the wisdom of the legislation
passed by our elected representatives, except when it violates
constitutional rights and we see no such infirmity here. See
City of Chicago v. Holland, 206 Ill. 2d 480, 489, 795 N.E.2d 240
(2003) (recognizing that "the General Assembly is free to enact
any legislation that the constitution does not expressly
prohibit"); Best v. Taylor Machine Works, 179 Ill. 2d 367, 377
(1997) (the role of courts is not to judge the prudence of
decisions by the General Assembly). In order to protect against
record piracy and protect consumers against deceptive recordings,
the rules regarding listing the actual manufacturer on CD
45
No. 1-05-1141
packaging must be followed by all who deal in such items. Thus,
unlike the statutes involved in Wright, Carpenter, Wick and
Zaremba, the reach of section 16-8 extends no further than to the
very activity that the legislature seeks to prohibit - the sale
of unidentified recordings - whether that activity is engaged in
by a party unaware of what the law requires or one with full
knowledge that he is dealing in counterfeit recordings. Section
16-8 seeks to protect the consumers of sound and audio visual
recordings by making it illegal to deal in unidentified
recordings. We are compelled to find section 16-8 bears a
reasonable relationship to that interest and the method used to
protect that interest is reasonable.
Having found no constitutional infirmity in section 16-8, we
are left with the concern expressed for the parties set out in
the defendant's hypotheticals. Our only response is that the
prosecution of either of the uninformed vendors under section 16-
8 appears remote, if not nonexistent. In the two counts under
section 16-8 filed against the defendant in this case, the
charges alleged a lack of consent of the copyright holder. This
allegation, while not an element of the offense, suggests before
a prosecution such as envisioned by the defendant by his
hypotheticals, the lawful owner of the recording would be
determined. As such, the scenarios of the parents of the
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No. 1-05-1141
vivacious toddler and the independent performer present
"nonrecurrent anomalies, the prosecution of which could well be
left to prosecutorial discretion." See People v. Marin, 342 Ill.
App. 3d 716, 729, 795 N.E.2d 953 (2003) (noting that "the
legislature should not be required to carry the burden of carving
out every possible [anomalous] exception at the risk of having
its statute declared facially unconstitutional").
The defendant's alternative suggestion that no fraudulent
conduct is required under section 16-8 also falls short of the
mark. By its very nature as a consumer protection statute,
section 16-8 serves to protect consumers against deceptive
conduct as to the actual or true manufacturer of the sound
recordings offered to the public even where the deceptive conduct
amounts to no more than the absence of mandated information of
the manufacturer or performer on the packaging of the CD or DVD.
Accordingly, we reject the defendant's contentions. As
addressed above, while section 16-8 was passed as part of an
effort to curtain record piracy, the specific purpose of section
16-8 is to protect consumers. Consumer protection is a
legitimate state interest (Pennell v. San Jose, 485 U.S. 1, 13,
99 L. Ed. 2d 1, 15, 108 S. Ct. 849, 859 (1988)), and the
packaging requirements of section 16-8 are narrowly tailored to
serve that purpose.
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No. 1-05-1141
The defendant also argues section 16-8 runs afoul of the
first amendment "because it compels the disclosure of a speaker's
identity by those wishing to remain anonymous for legitimate
reasons." The defendant cites to the Supreme Court's decision in
Talley v. California, 362 U.S. 60, 4 L. Ed. 2d 559, 80 S. Ct. 536
(1960), for support. However, the defendant's discussion of this
issue in his brief, contained in approximately one-half of one
page, is so lacking in analysis that under Supreme Court Rule
341, we need not consider it. 210 Ill. 2d R. 341(h)(7).
CONCLUSION
For the reasons stated above, the defendant's conviction
under count III is affirmed. His conviction under count I is
reversed as preempted by the federal Copyright Act. His
convictions under counts II and IV are reversed based on the
insufficiency of the evidence.
Affirmed in part and reversed in part.
CAHILL, P.J., and R. GORDON, J., concur.
48