CALIFORNIA’S P2P LAW

IVAN HOFFMAN, B.A., J.D.


        In “Respect for the Law” and “The Law” I wrote about the need for people to go beyond the literal requirements of the law and to take affirmative steps to manifest their awe of the law and a recognition of how important the law is to our society and can be to other societies that show similar respect.  However, being far from naïve, I understand that often it takes the compulsion of the law to bring respect for the law.   In some alternative universe, perhaps that would not be so but for now, it is what it is.

        California has passed a new law that makes it a criminal violation to knowingly download and electronically share works that are known by the party to be “commercial” and which works are protected by copyright without providing certain information required by the statute.

        Such downloading and file sharing has always been an act of copyright infringement by the parties engaging in such activities.  However, for discussions about the potential liabilities of providers of services that enable such peer-to-peer file sharing, read “Napster and Fair Use” and “Napster, Grokster and Morpheus” on my site.

The Statute

        The new law adds new provisions to the Penal Code as section 653aa and it reads in part as follows:

(a) Any person, except a minor, who is located in California, who, knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her e-mail address, and the title of the recording or audiovisual work is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), imprisonment in a county jail for a period not exceeding one year, or by both that fine and imprisonment.

(b) Any minor who violates subdivision (a) is punishable by a fine not exceeding two hundred fifty dollars ($250).  Any minor who commits a third or subsequent violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed one year, or by both that imprisonment and fine.

        Thus the law is applicable to the indicated parties who are “located in California.”  Additionally, the statute requires a “knowing” violation as to both knowledge that the work is “commercial” and knowledge that they are sharing the file.

        There are numerous definitions provided in the statute but the one that is most significant for purposes of this article is the definition of “commercial.”  The statute reads in this regard:

(3) "Commercial recording or audiovisual work" means a recording or audiovisual work whose copyright owner, or assignee, authorized agent, or licensee, has made or intends to make available for sale, rental, or for performance or exhibition to the public under license, but does not include an excerpt consisting of less than substantially all of a recording or audiovisual work.  A recording or audiovisual work may be commercial regardless of whether the person who electronically disseminates it seeks commercial advantage or private financial gain from that dissemination. [emphasis added].
        The emphasized language reinforces the intent of the statute to make criminal the peer-to-peer file sharing.  However, keep in mind that this law is not the only law under which a party can be prosecuted (see below) or sued and any form of downloading and file sharing is still an infringement of copyright even if not covered by this particular statute.

        Moreover, the statute applies to both audio only recordings as well as audiovisual recordings, the latter category including all videogames, software and other such works.  The definitions of these works are:

 (1) "Recording" means the electronic or physical embodiment of any recorded images, sounds, or images and sounds, but does not include audiovisual works or sounds accompanying audiovisual works.

(2) "Audiovisual work" means the electronic or physical embodiment of motion pictures, television programs, video or computer games, or other audiovisual presentations that consist of related images that are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, or a computer program, software, or system, as defined in Section 502, together with accompanying sounds, if any.

        The law provides for a number of exceptions to liability including but not limited to that the law does not apply:
(1) To a person who electronically disseminates a commercial recording or audiovisual work to his or her immediate family, or within his or her personal network, defined as a restricted access network controlled by and accessible to only that person or people in his or her immediate household.
        There are other exceptions provided as well.  Additionally, Internet service providers, as defined in the law, are not liable under this statute, if the Internet service provider maintains its valid e-mail address or other means of electronic notification on its Web site in a location that is accessible to the public.

        Of significance as well, as discussed above, is that the law provides:

(h) Nothing in this section shall preclude prosecution under any other provision of law.
        The law is intended to become inoperative on January 1, 2010 unless a “later enacted statutes deletes or extends that date.”

        All parties are encouraged to read the entirety of the statute since the above are merely some but certainly not all of the provisions.

Conclusion

        I would like to believe that doing the “right thing” is intuitively self-evident.   And frankly I believe that it is and that, as such, I believe that everyone knows that infringing on another party’s intellectual property is wrong.

        Where the disconnect seems to me is not in not knowing what is “right” but in not doing what is “right.”

Copyright © 2004 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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