Ohio record pirating statute preempted by Copyright Act

State v. Boyd, 2010 WL 3565414 (Ohio App. 1 Dist. September 15, 2010)

Defendant was convicted under Ohio state criminal law for selling pirated DVD movies on a street corner. This apparently was the first ever prosecution under a law — a “record pirating statute” — enacted in 1976 (which was two years before the Copyright Act took effect). Defendant sought review of his conviction with the state appellate court. On appeal, the court reversed the conviction.

The court held that the state record pirating statute (R.C. 1333.52) was preempted by Section 301 of the Copyright Act (17 U.S.C. 301).

It was not clear which subsection of the record pirating statute defendant had been accused of violating. The statute provides:

No person shall purposely do either of the following: (1) Transcribe, without the consent of the owner, any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with intent to sell or use for profit through public performance any product derived from the transcription. . . .


No person shall purposely manufacture, sell, or distribute for profit any phonograph record, tape, or album of phonographic records or tapes unless the record and the outside cover, box, or jacket of the record, tape, or album clearly and conspicuously discloses the name and street address of the manufacturer of the record, tape, or album, and the name of the performer or group whose performance is recorded. . . .

The Copyright Act expressly preempts certain state-law actions. Section 301 states that all legal or equitable rights that are equivalent to any of the exclusive rights conferred by the Copyright Act and that come within the subject matter of copyright . . . are governed exclusively by the Copyright Act.

In this case, there was no dispute that the movies were within the subject matter of federal copyright law. The more detailed analysis came in examining the question of whether the work was governed exclusively by the Copyright Act. That inquiry looks to see whether there is a qualitatively different “extra element” in the state law claim beyond what is required to show copyright infringement.

The court looked to two similar Ohio cases in which defendants had engaged in similar conduct. In State v. Perry, the Ohio supreme court found that the statute supporting the prosecution for “unauthorized use of property” by uploading and downloading computer software to an internet bulletin board service was preempted. In State v. Moning, the court held that a computer crime statute that prohibited the unauthorized access to data in a database was not preempted. The unauthorized access provided the extra element in that case.

3 thoughts on “Ohio record pirating statute preempted by Copyright Act

  1. Andrew Pequignot - September 19, 2010

    Interesting. It appears that the Court determined that both subsections were preempted. Many states have similar "labeling" statutes. The last time I looked at the issue, all of the courts that had reviewed a state labeling statute had ruled that there was no preemption. The issue received a lot of publicity in Georgia a couple years ago when DJ Drama was charged under the Georgia labeling statute. I co-authored an article for Copyright World on the topic, which is available here: http://kilpatrickstockton.com/~/media/Files/artic….

  2. Dale Kurth - September 29, 2010

    Nice post. The Ohio court was not exactly alone. Last November 19, the Illinois Supreme Court did the same thing (alright, it was CDs of sound recordings) in People v. Williams, 235 Ill.2d 178, 920 N.E.2d 446 (2009). I wrote an article about that case which was published by the IL State Bar Assn in the 6/10 issue of their IP newsletter. (I am now the chair of the IP Section this year.) Here is a link, hope it works: http://www.isba.org/sections/ip/newsletter/2010/0

  3. Dale Kurth - September 29, 2010

    The IL statute held to be preempted in Williams was 720 ILCS 5/16-7, which is the state anti-piracy provision. Williams had also been convicted under 5/16-8, the labeling statute, but his appeal of that issue to the IL Supreme Court concerned challenges based only on free speech and due process.
    My article proposed that the IL statute be amended to conform to the federal Copyright Act. I drafted such a bill, and it is now pending in Springfield. With passage, the IL statute will apply, with respect to sound recordings, only to those recorded prior to 2/15/72. That was the effective date of the federal Sound Recordings Act of 1971, which first extended some exclusive rights to sound recordings.

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