Tag Archives: preemption

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. . . .

and

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.