Florida Senate - 2012 SB 432 By Senator Flores 38-00498-12 2012432__ 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; amending s. 775.089, F.S.; 10 providing that a crime victim entitled to restitution 11 may include a trade association representing the owner 12 or lawful producer of a pirated recording in certain 13 circumstances; providing an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17 Section 1. Subsection (3) of section 540.11, Florida 18 Statutes, is amended to read: 19 540.11 Unauthorized copying of phonograph records, disk, 20 wire, tape, film, or other article on which sounds are 21 recorded.— 22 (3)(a) It is unlawful: 23 1. To sell or offer for sale or resale, advertise, cause 24 the sale or resale of, rent, transport or cause to be rented or 25 transported, or possess for any of these purposes any article 26 with the knowledge, or with reasonable grounds to know, that the 27 sounds thereon have been transferred without the consent of the 28 owner. 29 2. To sell or offer for sale or resale, advertise, cause 30 the sale or resale of, rent, transport or cause to be rented or 31 transported, or possess for any of these purposes any article 32 embodying any performance, whether live before an audience or 33 transmitted by wire or through the air by radio or television, 34 recorded without the consent of the performer. 35 3. Knowingly, for commercial advantage or private financial 36 gain to sell or resell, offer for sale or resale, advertise, 37 cause the sale or resale of, rent, transport or cause to be 38 rented or transported, or possess for such purposes, any 39 phonograph record, disk, wire, tape, film, or other article on 40 which sounds are recorded, unless the outside cover, box, or 41 jacket clearly and conspicuously discloses the actual name and 42 address of the manufacturer thereof, and the name of the actual 43 performer or group. 44 (b)1. A person who violates paragraph (a) commits a felony 45 of the third degree, punishable as provided in s. 775.082, by a 46 fine of up to $250,000, or both if the offense involves at least 47 1,000 unauthorized articles embodying sound or at least 65 48 unauthorized audiovisual articles during any 180-day period or 49 is a second or subsequent conviction under either this 50 subparagraph or subparagraph 2. of this subsection. 51 2. A person who violates paragraph (a) commits a felony of 52 the third degree, punishable as provided in s. 775.082, by a 53 fine of up to $150,000, or both if the offense involves more 54 than 100 but less than 1,000 unauthorized articles embodying 55 sound or more than 7 but less than 65 unauthorized audiovisual 56 articles during any 180-day period. 57 3. A person who otherwise violates this subsection commits 58 a misdemeanor of the first degree, punishable as provided in s. 59 775.082, by a fine of up to $25,000, or both. 60 4. A person who violates subparagraph (a)3. shall be 61 ordered to make restitution to any owner or lawful producer of a 62 master recording that has suffered injury resulting from the 63 crime, or to the trade association representing such owner or 64 lawful producer. The order of restitution shall be based on the 65 aggregate wholesale value of lawfully manufactured and 66 authorized recordings corresponding to the number of 67 nonconforming recordings involved in the offense unless a 68 greater value can be proven. The order of restitution shall also 69 include investigative costs relating to the offense. 70 Section 2. Paragraph (c) of subsection (1) of section 71 775.089, Florida Statutes, is amended to read: 72 775.089 Restitution.— 73 (1) 74 (c) The term “victim” as used in this section and in any 75 provision of law relating to restitution means each person who 76 suffers property damage or loss, monetary expense, or physical 77 injury or death as a direct or indirect result of the 78 defendant’s offense or criminal episode, and also includes the 79 victim’s estate if the victim is deceased,
andthe victim’s next 80 of kin if the victim is deceased as a result of the offense, and 81 the victim’s trade association if the offense is a violation of 82 s. 540.11(3)(a)3. and the victim has granted the trade 83 association written authorization to represent the victim’s 84 interests in criminal legal proceedings and to collect 85 restitution on the victim’s behalf. 86 Section 3. This act shall take effect October 1, 2012.