CS/HB 189

A bill to be entitled
2An act relating to unauthorized copying of recordings;
3amending s. 540.11, F.S.; requiring restitution by
4persons who knowingly commit certain violations
5relating to recordings for commercial advantage or
6private financial gain; authorizing recovery by a
7trade association representing the owner or lawful
8producer of a recording; providing for calculation of
9a restitution amount; providing an exemption for
10certain providers of online services or network access
11and related services; amending s. 775.089, F.S.;
12providing that a crime victim entitled to restitution
13may include a trade association representing the owner
14or lawful producer of a pirated recording in certain
15circumstances; providing an effective date.
17Be It Enacted by the Legislature of the State of Florida:
19     Section 1.  Subsection (3) of section 540.11, Florida
20Statutes, is amended, and paragraph (d) is added to subsection
21(6) of that section, to read:
22     540.11  Unauthorized copying of phonograph records, disk,
23wire, tape, film, or other article on which sounds are
25     (3)(a)  It is unlawful:
26     1.  To sell or offer for sale or resale, advertise, cause
27the sale or resale of, rent, transport or cause to be rented or
28transported, or possess for any of these purposes any article
29with the knowledge, or with reasonable grounds to know, that the
30sounds thereon have been transferred without the consent of the
32     2.  To sell or offer for sale or resale, advertise, cause
33the sale or resale of, rent, transport or cause to be rented or
34transported, or possess for any of these purposes any article
35embodying any performance, whether live before an audience or
36transmitted by wire or through the air by radio or television,
37with the knowledge that it was recorded without the consent of
38the performer.
39     3.  Knowingly, for commercial advantage or private
40financial gain to sell or resell, offer for sale or resale,
41advertise, cause the sale or resale of, rent, transport or cause
42to be rented or transported, or possess for such purposes, any
43phonograph record, disk, wire, tape, film, or other article on
44which sounds are recorded, unless the outside cover, box, or
45jacket clearly and conspicuously discloses the actual name and
46address of the manufacturer thereof, and the name of the actual
47performer or group.
48     (b)1.  A person who violates paragraph (a) commits a felony
49of the third degree, punishable as provided in s. 775.082, by a
50fine of up to $250,000, or both if the offense involves at least
511,000 unauthorized articles embodying sound or at least 65
52unauthorized audiovisual articles during any 180-day period or
53is a second or subsequent conviction under either this
54subparagraph or subparagraph 2. of this subsection.
55     2.  A person who violates paragraph (a) commits a felony of
56the third degree, punishable as provided in s. 775.082, by a
57fine of up to $150,000, or both if the offense involves more
58than 100 but less than 1,000 unauthorized articles embodying
59sound or more than 7 but less than 65 unauthorized audiovisual
60articles during any 180-day period.
61     3.  A person who otherwise violates this subsection commits
62a misdemeanor of the first degree, punishable as provided in s.
63775.082, by a fine of up to $25,000, or both.
64     4.  A person who is convicted of violating subparagraph
65(a)3. shall be ordered to make restitution to any owner or
66lawful producer of a master recording that has suffered injury
67resulting from the crime, or to the trade association
68representing such owner or lawful producer. The order of
69restitution shall be based on the aggregate wholesale value of
70lawfully manufactured and authorized recordings corresponding to
71the number of nonconforming recordings involved in the offense
72unless a greater value can be proven. The order of restitution
73shall also include investigative costs relating to the offense.
74     (6)  This section does not apply:
75     (d)  To any provider of online services or network access,
76the operator of facilities thereof, or any entity that provides
77the transmission, routing, or connections for online
78communications, between or among points specified by a user or
79material of the user's choosing, without modification to the
80content of the material as sent or received, by virtue of being
81used by another person to transport any article or communicate
82regarding any article, unless such service provider:
83     1.  Knowingly and willfully aids and abets a violation of
84this section; or
85     2.  Is substantially engaged in the unlawful reproduction,
86distribution, or public performance of sound recordings.
87     Section 2.  Paragraph (c) of subsection (1) of section
88775.089, Florida Statutes, is amended to read:
89     775.089  Restitution.-
90     (1)
91     (c)  The term "victim" as used in this section and in any
92provision of law relating to restitution means each person who
93suffers property damage or loss, monetary expense, or physical
94injury or death as a direct or indirect result of the
95defendant's offense or criminal episode, and also includes the
96victim's estate if the victim is deceased, and the victim's next
97of kin if the victim is deceased as a result of the offense, and
98the victim's trade association if the offense is a violation of
99s. 540.11(3)(a)3. and the victim has granted the trade
100association written authorization to represent the victim's
101interests in criminal legal proceedings and to collect
102restitution on the victim's behalf.
103     Section 3.  This act shall take effect October 1, 2012.

CODING: Words stricken are deletions; words underlined are additions.