United States v. Bily, Crim. No. 75-457.

• Decision Date: 12 December 1975
• Docket Number: Crim. No. 75-457.
• Citation: 406 F. Supp. 726
• Parties: UNITED STATES of America v. Raymond M. BILY.
• Court: U.S. District Court — Eastern District of Pennsylvania

406 F. Supp. 726

UNITED STATES of America v. Raymond M. BILY.

Crim. No. 75-457.

United States District Court, E. D. Pennsylvania.

November 13, 1975.

As Amended December 12, 1975.

COPYRIGHT MATERIAL OMITTED

James Manning, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Edward C. Connolly, Warminster, Pa., for defendant.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

This is a criminal prosecution under the Copyright Act, 17 U.S.C. §§ 1, 101, and 104.¹ The defendant has made three pretrial motions. He moves this Court to quash the indictment, to suppress evidence, and to return seized property. Our disposition of these three motions is as follows. The motion to quash is denied.² The motion to suppress evidence is denied as to evidence obtained in the search of January 9, 1975, except that it is granted as to the copy of the film, "White Christmas." The motion is granted as to all evidence seized in the search of January 10, 1975. The defendant's motion under Fed.R.Crim.P. 41(e) for return of seized property is denied with prejudice as to property taken in the search of January 9, 1975, with the exception of the copy of the film, "White Christmas." As to "White Christmas," and all property seized in the search of January 10, 1975, the defendant's Rule 41(e) motion is denied, without prejudice to refiling within 60 days if at such time he is prepared to present new evidence to support his contention of ownership of the seized property.

I

Defendant Raymond M. Bily lives in Warminster, Pennsylvania. He has maintained in his house and garage a large collection of motion picture films, and he has been listed as a collector in the 1973 International Directory of 16mm film collectors. On January 9, 1975, two special agents of the Federal Bureau of Investigation visited Mr. Bily's residence. They asked to examine his collection and to speak with him about it. Mr. Bily said that he was not surprised by the visit, since he had been told by other collectors that they had recently been called on by FBI agents.

After a brief discussion with the agents, Mr. Bily signed a waiver of rights form entitled "Interrogation; Advise of Rights." The agents talked with Mr. Bily for about two hours, and then informed him that they would like to search his house. Mr. Bily consented, executing a consent to search form which included this statement:

"These agents are authorized by me to take from my premises any letters, papers, materials or other property, which they may desire."

For approximately two more hours the agents searched Mr. Bily's house and garage, and continued to converse with him, whereupon Bily said, "That's enough. I want you to stop." The agents left the Bily residence, taking with them 16mm copies of the motion pictures, "Marooned," "White Christmas," and "Sweet Charity."

On January 10, 1975, the agents obtained a search warrant³ and returned to Mr. Bily's home, which had been kept under FBI surveillance since the termination of the first search. Under the authority of the warrant, five agents and a technician spent approximately nine hours in the Bily residence selecting and removing 2,702 reels of film.

On July 29, 1975, Mr. Bily was indicted in five counts of copyright infringement for profit. The five counts corresponded to the alleged infringement of five films; "Harlow", "Hombre", "Shenandoah", "Sweet Charity", and "White Christmas".

On September 24, 1975, this Court held a hearing on the defendant's three pretrial motions. We heard the testimony of Mr. Bily, Mrs. Bily, Agents Creasy and Hoover, and the government's expert witness, Mr. Nolan.

The question of the validity of the first search presents factual questions only, and they can be dealt with briefly. The defendant alleges that his consent was not voluntarily given, both because he was under the influence of a medication at the time of his waiver of rights, and because the agents tricked him into signing the consent form by falsely stating that if he refused to waive his rights they would be back with a warrant in a half hour. We reject these contentions. Specifically, we find a) that the defendant was clear-minded and not acting under duress when he agreed to the search of his home, and b) that neither agent stated to the defendant that if he did not sign the waiver form a search warrant would be obtained immediately.

We credit in full the testimony of Agent Creasy in regard to the time the agents commenced taking possession of three films. That is, the agents had picked up "Marooned" and "Sweet Charity" before Bily demanded an end to the search, but "White Christmas" had not been taken prior to that time.

These statements were made at Creasy's cross-examination (Record, at 42):

Mr. Connolly: "In other words, if I understand what you are telling us you picked up WHITE CHRISTMAS after he told you to stop, is that true?"

Agent Creasy: "That is correct."

We find that Bily's demand was a revocation of consent that took immediate effect. The seizures of "Marooned" and "Sweet Charity" were valid, because they were commenced before the revocation. However, there was no consent to the taking of "White Christmas". Nor were there grounds for an involuntary seizure. The reasons are set forth below in our discussion of probable cause in connection with the January 10th search warrant.

II

The question of the validity of the search warrant used to gain entry for the January 10 search and seizure presents difficult legal issues. There are relatively few reported decisions in the area of civil copyright infringement, only a handful dealing with criminal infringement, and none that we could find addressing the question of probable cause in a criminal infringement case. We know only of one relevant decision in which the Copyright Act was interpreted and applied in the unique factual setting of the film distribution systems of major motion picture studios.

The basic question facing the Court is, what constitutes probable cause for belief that a person has criminally infringed film copyrights? The answer to that question sets the standard with which we are to decide whether the facts alleged in the Affidavit for Search Warrant are legally sufficient to support the Magistrate's finding. What makes the final calculation so difficult, is that one must make two kinds of estimates which push in opposite directions. On the one hand, the government points out that a probable cause showing requires far less complete proof than is ultimately needed to convict an offender. On the other hand, the defendant argues that the Copyright Act places an extremely stiff burden of proof on the government prosecutor, and this burden correspondingly increases the evidentiary showing needed to demonstrate probable cause.

Briefly, the government's position is that it need only establish the probability that a crime has occurred and evidence is being secreted, and it is not required to make a prima facie showing of illegal activity, much less guilt beyond a reasonable doubt. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), United States v. Spinelli, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Moreover, the firsthand evaluations of a prudent law enforcement officer, based on his experience with similar situations, must be given weight. Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962). Indeed, the government's strongest argument in support of the warrant is that the inferences made by the FBI agents after viewing Bily's large film collection and after spending an afternoon with Bily should compensate for weaknesses in the government's preliminary proofs regarding the elements of infringement and profit. We have to conclude, however, that we cannot rely on these impressions as much as would be needed to uphold the warrant.

The defendant stresses the implications of the unusual character of the alleged crime, infringement for profit. Judicial interpretations of the probable cause test have mostly been made in prosecutions for undeniably antisocial acts — narcotics distribution, bookmaking, thefts, assaults, and the like. But here, the very statute which prohibits certain narrowly defined uses of creative works actually encourages people to deal in such materials outside of the prohibited area. Moreover, criminal copyright infringement incorporates as one of its elements the concept of civil copyright infringement. Civil copyright law has not entirely kept pace with the problems created by new forms of media and copying.⁴ The instant case implicates an area of civil copyright law where the rules of proof are far from settled, which necessarily raises questions about the evidentiary showing needed to establish criminal liability. We think the defendant is correct in focusing attention on the relationship between the law of civil infringement and the proof of criminal infringement. The balance of section II of this opinion contains an analysis of this relationship. In section III, we consider the sufficiency of the search warrant in light of this analysis.

Civil copyright law is a compromise between competing social policies—one favoring the widest possible dissemination of new ideas and new forms of expression, and the other giving writers and artists enough of a monopoly over their works to ensure their receipt of fair material rewards for their efforts. The first policy predominates, which means that the system of rewards is to be no more extensive than is necessary in the long run to elicit a socially optional amount of creative activity.⁵ Thus, it is in keeping with the policy of the act for courts to be careful not to chill dealing in creative works, when that conduct approaches, but does not cross, the borderline of infringement. In the civil context, this leads to the conclusion that the burden of showing the non-occurrence of a first sale (which is critical to liability for infringement) must be put on the...