CS/HB 189

1	A bill to be entitled
2	An act relating to unauthorized copying of recordings;
3	amending s. 540.11, F.S.; requiring restitution by
4	persons who knowingly commit certain violations
5	relating to recordings for commercial advantage or
6	private financial gain; authorizing recovery by a
7	trade association representing the owner or lawful
8	producer of a recording; providing for calculation of
9	a restitution amount; providing an exemption for
10	certain providers of online services or network access
11	and related services; amending s. 775.089, F.S.;
12	providing that a crime victim entitled to restitution
13	may include a trade association representing the owner
14	or lawful producer of a pirated recording in certain
15	circumstances; providing an effective date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Subsection (3) of section 540.11, Florida
20	Statutes, 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,
23	wire, tape, film, or other article on which sounds are
24	recorded.-
25	(3)(a)  It is unlawful:
26	1.  To sell or offer for sale or resale, advertise, cause
27	the sale or resale of, rent, transport or cause to be rented or
28	transported, or possess for any of these purposes any article
29	with the knowledge, or with reasonable grounds to know, that the
30	sounds thereon have been transferred without the consent of the
31	owner.
32	2.  To sell or offer for sale or resale, advertise, cause
33	the sale or resale of, rent, transport or cause to be rented or
34	transported, or possess for any of these purposes any article
35	embodying any performance, whether live before an audience or
36	transmitted by wire or through the air by radio or television,
37	with the knowledge that it was recorded without the consent of
38	the performer.
39	3.  Knowingly, for commercial advantage or private
40	financial gain to sell or resell, offer for sale or resale,
41	advertise, cause the sale or resale of, rent, transport or cause
42	to be rented or transported, or possess for such purposes, any
43	phonograph record, disk, wire, tape, film, or other article on
44	which sounds are recorded, unless the outside cover, box, or
45	jacket clearly and conspicuously discloses the actual name and
46	address of the manufacturer thereof, and the name of the actual
47	performer or group.
48	(b)1.  A person who violates paragraph (a) commits a felony
49	of the third degree, punishable as provided in s. 775.082, by a
50	fine of up to $250,000, or both if the offense involves at least
51	1,000 unauthorized articles embodying sound or at least 65
52	unauthorized audiovisual articles during any 180-day period or
53	is a second or subsequent conviction under either this
54	subparagraph or subparagraph 2. of this subsection.
55	2.  A person who violates paragraph (a) commits a felony of
56	the third degree, punishable as provided in s. 775.082, by a
57	fine of up to $150,000, or both if the offense involves more
58	than 100 but less than 1,000 unauthorized articles embodying
59	sound or more than 7 but less than 65 unauthorized audiovisual
60	articles during any 180-day period.
61	3.  A person who otherwise violates this subsection commits
62	a misdemeanor of the first degree, punishable as provided in s.
63	775.082, 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
66	lawful producer of a master recording that has suffered injury
67	resulting from the crime, or to the trade association
68	representing such owner or lawful producer. The order of
69	restitution shall be based on the aggregate wholesale value of
70	lawfully manufactured and authorized recordings corresponding to
71	the number of nonconforming recordings involved in the offense
72	unless a greater value can be proven. The order of restitution
73	shall 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,
76	the operator of facilities thereof, or any entity that provides
77	the transmission, routing, or connections for online
78	communications, between or among points specified by a user or
79	material of the user's choosing, without modification to the
80	content of the material as sent or received, by virtue of being
81	used by another person to transport any article or communicate
82	regarding any article, unless such service provider:
83	1.  Knowingly and willfully aids and abets a violation of
84	this section; or
85	2.  Is substantially engaged in the unlawful reproduction,
86	distribution, or public performance of sound recordings.
87	Section 2.  Paragraph (c) of subsection (1) of section
88	775.089, 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
92	provision of law relating to restitution means each person who
93	suffers property damage or loss, monetary expense, or physical
94	injury or death as a direct or indirect result of the
95	defendant's offense or criminal episode, and also includes the
96	victim's estate if the victim is deceased, and the victim's next
97	of kin if the victim is deceased as a result of the offense, and
98	the victim's trade association if the offense is a violation of
99	s. 540.11(3)(a)3. and the victim has granted the trade
100	association written authorization to represent the victim's
101	interests in criminal legal proceedings and to collect
102	restitution 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.