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In a victory for the recording industry in its battle against street vendors who sell unlicensed “DJ mixes” and other violators of music copyright laws, a Manhattan judge has ruled that prosecutors going after such lawbreakers under a New York state statute need not establish that the violations were intentional. The statute, Penal Law 275.35, serves as a complement to the state’s primary counterfeiting statute, PL 275.10, which proscribes reproducing and advertising a recording without the owner’s or performer’s consent. To prevent black marketeers from sidestepping the counterfeiting statute by simply selling unlabeled recordings, the Legislature required in PL 275.35, that recordings “clearly and conspicuously disclose the actual name and address of the manufacturer or the name of the performer or principal artist.” In a case of first impression, Supreme Court Justice Lewis Bart Stone ruled that, for prosecution under the statute, the omission of the name and address need not be intentional. Stone set forth his examination of the issue in a sentencing memorandum, People v. Colon, 3962/04. “As an analysis of the actual text is inconclusive, the Court must turn to legislative history and precedent to determine whether they show ‘clear intent,’” Stone held. “[T]his Court finds that the only rational reading of PL 275.35 and the only rational intent of the Legislature in enacting it is that express knowledge of the lack of the name and address need not be shown for conviction under the statute.” The issue arose in the prosecution of the owner and operator of the Harlem Music Store, Norma Colon, for selling four compact discs of “DJ mixes” to an undercover investigator for the Recording Industry Association of America. “A DJ Mix purports to be a collection of songs or tracks selected by a disc jockey at a club or other event venue based on his sensibilities,” Stone wrote. “Nothing is inherently illegal in creating and/or selling a ‘DJ Mix.’” However, the mixes, commonly sold in Manhattan on Canal Street, 125th Street and other areas where counterfeit goods can be found, rarely if ever are authorized by the individual songs’ copyright holders. The Recording Industry investigator turned the four discs over to the Manhattan District Attorney’s office, which initiated the action against Colon. Shortly thereafter, police officers executing a search warrant at Colon’s store seized approximately 15,000 compact disc recordings of DJ mixes. Prosecutors charged Colon with first-degree failure to disclose the origin of a recording, which requires evidence that the defendant sold or offered for sale at least 1,000 of such recordings, a class A misdemeanor. They also charged her with a second-degree violation of the statute, which requires evidence of only one such sale or offer. Stone dedicated nearly five of his memorandum’s 22 pages to discussing the public policy behind enforcing copyright law. “These thieves and their fences and cohorts, whether domestic or foreign, deprive the artists and creators of intellectual property and rarely (not unlike the classic thief or fence of tangible personal property) pay taxes, whether as a sales tax on the resale of the stolen property nor income taxes on their earnings,” Stone wrote. The judge estimated that the Harlem Music Store’s inventory at the time of the search represented approximately $9,000 in lost city and state sales taxes. DJ mixes pose a particular threat to intellectual property rights, Stone added. “Recent technical improvements and the reduced cost of electronic components now available at retail stores have made it easier, cheaper and quicker to copy some or all of the music from a CD to another disc,” he wrote. In January, a jury convicted Colon of a second-degree violation of PL 275.35, finding that the prosecution had demonstrated that she had sold or offered to sell at least one but less than 1,000 recordings in violation of the statute. In his sentencing memorandum, Stone addressed what he termed an issue of first impression, the question of whether the prosecution had been required to demonstrate that Colon purposefully did not disclose the name and address of the manufacturer or the name of the artist. Finding a reading of the statute to be inconclusive, Stone turned to its legislative history and an analysis of the purpose of the law. “If penalizing a failure to disclose must require a knowledge of the omission of the true manufacturer’s name and address for conviction, few but the legally trained member of the pirate crew would be aware of this technical issue, most would neither know nor care,” he concluded. Stone sentenced Colon to the maximum jail term allowed by law. “Because this court has considered that the defendant was engaged, with her son, as a retail component in a large scale criminal piracy enterprise, that notwithstanding her relatively clean criminal record ([the one blemish] being a 23-year-old conviction for welfare fraud), that substantial jail time on her misdemeanor conviction is warranted,” he held. “Thus, the Court imposes a sentence of one year and a fine of $1,000.” The judge, however, stayed the sentence pending possible appeal. Stone also declined the Recording Industry’s request for $88,000 in restitution. He ruled that, among other reasons for declining the award, restitution “goes to ‘victims,’ and not their trade associations.”

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