[dvd-discuss] Illinois implements "Abbott's Psalter" paracopyright law

[John Schulien <schulien(at)speakeasy.net>]

I was just reading the "superdmca" pages at freedom-to-tinker, and I thought
I'd take a look at the Illinois legislation that was passed last year.

http://www.legis.state.il.us/legislation/ilcs/ch720/ch720act5articles/ch720act5sub21.htm

This part made my jaw drop.  Illinois actually passed a law that says that
it's illegal to copy an audio or audiovisual work ... not without 
permission of the
copyright holder, but without the permission of the OWNER OF THE PHYSICAL
MASTER RECORDING!

 > (720 ILCS 5/16-7)
 > Sec. 16-7.  Unlawful use of recorded sounds or images.
 > (a)  A person commits unlawful use of recorded sounds
 > or images when he:
 > (1)  Intentionally, knowingly or recklessly transfers or causes
 > to be transferred without the consent of the owner,  any  sounds  or
 > images  recorded  on  any  sound  or audio visual recording with the
 > purpose of selling or causing to be sold, or using or causing to  be
 > used  for  profit  the article to which such sounds or recordings of
 > sound are transferred.
...
 > (b)  As used in this Section and Section 16-8:
  ...
 > (2)  "Owner"  means  the  person  who  owns  the  master  sound
 > recording on which sound is recorded and from which the  transferred
 > recorded  sounds  are  directly or indirectly derived, or the person
 > who owns the rights to record or authorize the recording of  a  live
 > performance.
...
 > (4)  "Master  sound  recording"  means  the  original  physical
 > object  on which a given set of sounds were first recorded and which
 > the original object  from  which  all  subsequent  sound  recordings
 > embodying the same set of sounds are directly or indirectly derived.

Is there any chance that this would stand up in Federal court? It
appears to fly completely in the face of copyright law.

The next section of the statute is equally jaw-dropping.  It is a crime
in Illinois to create, circulate, or even to perform an audio or
audio-visual recording that is "unidentified":

 > (720 ILCS 5/16-8)
 > Sec. 16-8.  Unlawful use  of  unidentified  sound  or
 > audio  visual recordings.
 > (a)  A  person  commits  unlawful use of unidentified sound or audio
 > visual  recordings  when  he  intentionally,  knowingly,  recklessly  or
 > negligently  for  profit  manufactures,   sells,   distributes,   vends,
 > circulates, performs, leases or otherwise deals in and with unidentified
 > sound  or  audio  visual  recordings  or  causes  the manufacture, sale,
 > distribution, vending, circulation, performance, lease or other  dealing
 > in and with unidentified sound or audio visual recordings.

 > (5)  "Unidentified  sound  or  audio  visual recording" means a
 > sound or audio visual recording without the actual name and full and
 > correct street address of the manufacturer,  and  the  name  of  the
 > actual  performers  or groups prominently and legibly printed on the
 > outside cover or jacket and on the label  of  such  sound  or  audio
 > visual recording.

It appears to be a crime now to record (manufacture) and/or playback
(perform) a videotape or audiotape without labelling it.  There is no
exception for ordinary use or fair use.  There is no differentiation between
public and private performance.  Apparently, setting your VCR
to record a show, then watching it immediately thereafter is now illegal.

There is no exception for your own works either. Making, distributing,
or even playing back home movies of your child appear to be equally
criminalized, unless you write your street address and the name of
your child on the jacket and label immediately.

Oh yes, it's a felony for repeat offenders, like people who tape
Oprah every morning and watch it when they get home:

 > (b)  Unlawful  use  of unidentified sound or audio visual
 > recordings is a Class 4 felony; however:
 > (1)  If the offense involves more than 100  but  not  exceeding
 > 1000  unidentified sound recordings or more than 7 but not exceeding
 > 65 unidentified audio visual recordings during any  180  day  period
 > the authorized fine is up to $100,000; and
 > (2)  If the offense involves more than 1,000 unidentified sound
 > recordings  or  more  than  65  unidentified audio visual recordings
 > during any 180 day period the authorized fine is up to $250,000.
 > (c)  Each and  every  individual  manufacture,  sale,  distribution,
 > vending, circulation, performance, lease or other dealing in and with an
 > unidentified  sound  or  audio  visual  recording constitutes a separate
 > violation of this Section.

What about public domain works?

 > (i)  It is an affirmative defense to any charge of unlawful  use  of
 > recorded sounds or images that the recorded sounds or images so
 > used are public  domain  material.

How reassuring that you have the right to defend yourself in court ...

 > For purposes of this Section, recorded sounds are deemed to be
 > in the  public  domain  if  the  recorded  sounds  were
 > copyrighted  pursuant to the copyright laws of the United States, as the
 > same may be amended from time to time, and the term of the copyright and
 > any extensions or renewals thereof has expired.
 > (Source: P.A. 86-1210.)

Notably, the statute fails to protect the use of works that are in the
public domain but were never copyrighted.

What the heck are they smoking down in Springfield?