State v. Oidor
| Decision Date | 12 December 2012 |
| Docket Number | 090833172,A145040. |
| Citation | 292 P.3d 629,254 Or.App. 12 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Jose Aurelio OIDOR, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.
Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.
Defendant appeals a judgment convicting him of unlawful sound recording (the sound-recording count), ORS 164.865, and unlawful labeling of a sound recording (the unlawful-labeling count), ORS 164.868. He assigns error to the trial court's denial of his motion to dismiss the sound-recording count on the ground that the statute on which it is based, ORS 164.865(1)(b), is preempted by federal copyright law; to its denial of his motion for a judgment of acquittal (MJOA) on both counts; and to its imposition of restitution on the unlawful-labeling count. We conclude that the federal Copyright Act, 17 U.S.C. §§ 101–1332, preempts ORS 164.865(1)(b) and, thus, that the trial court erred in denying defendant's motion to dismiss the sound-recording count. We further conclude that there was sufficient evidence to support the conviction of defendant on the unlawful-labeling count and, thus, that the trial court did not err in denying defendant's MJOA on that count. Finally, we conclude that the court erred in imposing restitution on the latter count.
While driving his car, defendant was stopped by Officer Beetham for the traffic offense of failing to renew the vehicle registration for the car. Defendant consented to Beetham searching the car, and Beetham found bags and boxes of music compact discs (CDs) that Beetham thought might be unauthorized CD reproductions because the images and bar codes on the CD jackets were blurry.
Defendant told Beetham that he sold music CDs at a booth at a local flea market and that he had more CDs at his home. Defendant consented to a search of his home, where Beetham found and seized additional CDs that he believed were unauthorized reproductions. Beetham then contacted Detective Hogan, who had experience investigating the unauthorized reproduction and sale of music CDs. Beetham and Hogan went to defendant's booth at the flea market and seized additional CDs that had characteristics indicative of unauthorized reproductions.
Defendant was charged with unlawful sound recording, ORS 164.865(1)(b), and unlawful labeling of a sound recording, ORS 164.868. At trial, Hogan testified that he had training from the Recording Industry Association of America (RIAA) in identifying unauthorized reproductions of music CDs. He explained that the RIAA is an organization of recording artists and related businesses that have established an industry standard for music CDs and that the members of the RIAA follow the industry standard.
Hogan further explained that, over the course of his investigation, he had verified that the locations listed on the seized CDs as the addresses of the CDs' manufacturers were not the locations at which the CDs had been manufactured. He said that he had sent pictures of the CD jackets to RIAA representatives, who had verified that RIAA members were the manufacturers of the authorized versions of the CDs.1
Hogan also testified about the characteristics of CDs produced according to the industry standard and compared them with the characteristics of unauthorized reproductions. He explained that CD jackets produced according to the industry standard are tightly shrink-wrapped and sealed with a security label, while unauthorized reproductions often are wrapped in looser plastic and do not have a security label. In addition, CDs for each recording artist have a specific barcode identifying the particular recording; in contrast, unauthorized reproductions may display the same barcode on CDs containing the music of different recording artists.
Hogan added that, when a person duplicates a CD without authorization from its owner, the person copies an authorized version of the CD and its jacket. In doing that, the jackets are scanned and reproduced by a laser-jet printer, typically using poorer quality materials than those used by RIAA members, and, as a result, the jackets may have a blurry image and a poorer color quality. Further, unauthorized reproductions generally have the music written onto a recordable CD, unlike a CD manufactured according to the industry standard, which has the music pressed into it.
Finally, Hogan testified that the CDs seized from defendant did not conform to the industry standard but, instead, had characteristics indicative of unauthorized reproductions: they were encased in a loose plastic covering, had the same barcode affixed to CDs by different recording artists, had blurry jackets, and had the music written onto recordable CDs rather than pressed into them.
Defendant moved to dismiss the sound-recording count, contending that the Copyright Act expressly preempted the statute on which it is based, ORS 164.865(1)(b); the trial court denied the motion. At the close of the state's evidence, defendant moved for a judgment of acquittal on both counts. The court denied the motion and convicted defendant of both counts. In its judgment on the convictions, the court ordered defendant to pay $500 in restitution to the RIAA on the unlawful-labeling count.
Defendant appeals, contending that the trial court erred in denying his motion to dismiss the sound-recording count, in denying his MJOA on both counts, and in awarding restitution. We begin with his argument that the trial court erred in denying his motion to dismiss the sound-recording count on the ground that the federal Copyright Act preempts the state statute on which the count was based, ORS 164.865(1)(b).
The source of Congress's power to preempt state law is the Supremacy Clause of Article VI of the United States Constitution, which provides that the laws of the United States are “the supreme Law of the Land” and that the state courts “shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” There are three recognized circumstances in which a federal law preempts a state law: (1) when the federal law expressly preempts state law; (2) when the statutory scheme of the federal law “so completely occupies the field with respect to some subject matter that an intent to exclude the states from legislating in that subject area is implied”; and (3) when there is an actual conflict between the federal and state laws. Willis v. Winters, 350 Or. 299, 308, 253 P.3d 1058 (2011). The parties here have limited their arguments to the first type of preemption, viz., express preemption.
When a federal law expressly preempts a state law, the state law is without effect. Wolf v. Central Oregon & Pacific Railroad, Inc., 230 Or.App. 269, 275–76, 216 P.3d 316 (2009). Hence, if the Copyright Act expressly preempts ORS 164.865(1)(b), then the court erred in denying defendant's motion to dismiss the sound-recording count because the statute on which it is based is without effect.
Section 301(a) of the Copyright Act provides:
17 U.S.C. § 301(a). Thus, section 301 provides that the Copyright Act preempts a state law if the work at issue is fixed in a tangible medium and comes within the subject matter of copyright as specified by sections 102 and 103, and the state law creates a right that is “equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106.”
ORS 164.865(1)(b) prohibits a person from knowingly selling or offering or advertising for sale a sound recording that has been reproduced without the written consent of the person who owns the sound fixed in the master recording from which the sound recording was directly or indirectly derived.2 A recording is “a tangible medium on which information, sounds or images, or any combination thereof, are recorded or otherwise stored.” ORS 164.864(10). Sound recordings are given copyright protection by 17 U.S.C. section 102(a)(7). Thus, ORS 164.865(1)(b) governs work that is fixed in a tangible medium and that comes within the subject matter of copyright. Hence, the Copyright Act preempts ORS 164.865(1)(b) if ORS 164.865(1)(b) creates a right that is equivalent to any of the exclusive rights that are within the general scope of copyright.
Defendant contends that section 301 of the Copyright Act preempts ORS 164.865(1)(b) because ORS 164.865(1)(b) provides protection equivalent to the exclusive right of distribution created by the Copyright Act, 17 U.S.C. § 106(3),3 by prohibiting a person from selling or attempting to sell a sound recording without the consent of its owner. The state responds that the Copyright Act does not preempt ORS 164.865(1)(b) because ORS 164.865(1)(b) does not grant a “right” to anyone. The state recognizes that ORS 164.865(1)(b) prohibits a person from infringing another person's copyright by selling a reproduction of the copyrighted work without its owner's consent. Nonetheless, it contends, in essence, that ORS...
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