Georgia's CD labeling law upheld

Briggs v. State, --- S.E.2d ----, 2006 WL 3422972 (Ga.)

A number of states have anticounterfeiting laws that prohibit, as Georgia’s law does, distribution of media containing sounds or images without putting the actual name and address of the transferor prominently on the package containing the media.

Briggs, the defendant, had 52 CDs allegedly containing unauthorized reproductions of “recorded material” (does anyone pirate lectures, or can we assume this is music?), and was indicted under Georgia law. Though Briggs’s conduct would probably also trigger federal criminal law, it is unlikely that a federal prosecutor would bother with criminal copyright infringement charges for 52 CDs; thus state punishment is the only realistic criminal risk Briggs faced.

The Georgia Supreme Court rejected his vagueness/overbreadth challenges, as well as a claim of federal copyright preemption.

Briggs argued that the phrase “transferor of the sounds or visual images” is unconstitutionally vague. The court had little trouble with this argument, reasoning that the transferor is the individual or entity who transferred the sounds to the article, which is clear enough for due process purposes.

Are my CDs properly marked under Georgia law? I always see the record label prominently displayed, but I rather doubt that they all own the pressing plants that actually produced the CDs – in fact, with the independent labels, I’m reasonably confident that the plants are independently owned and operated, and thus the transferor’s name and address have been left off my CDs, in violation of Georgia law. To get this right, you’d have to interpret “transferor” to include “entity that authorized the transfer,” which is possible, but the court didn’t do it. Of course, this will never be applied to non-pirated CDs unless some enterprising prosecutor wants to attack an offensive CD and uses this statute as a pretext to do so.

Briggs also raised an overbreadth challenge. The statute regulates pure speech, and isn’t narrowly tailored because an artist or transferor may wish to keep his/its identity private. The court held that “the statute does not impinge upon pure speech. At most, the statute regulates a combination of commercial conduct and speech.” Despite its citation of a 9^th Circuit case reaching the same result, the court’s reasoning is flawed, even if the ultimate result is acceptable. Disclosure of a name is forced speech; there are good reasons to require disclosure, especially in commercial contexts, but good reasons don’t turn speech into conduct. (As a side note, I predict that this provision would be unconstitutional as applied to anonymous political speech, even if the political speech was sold for a price. The majority didn’t address the possibility of an as-applied challenge.)

Because of its mistaken identification of disclosure as conduct, the court then applied United States v. O'Brien, 391 U.S. 367 (1968), allowing regulation of expressive conduct if the regulation furthers a substantial governmental interest that is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedom is no greater than necessary to further the governmental interest. Anti-piracy justifications, of course, suffice to satisfy O’Brien. The court also suggested that, based on its understanding of the entertainment industry, “very few legitimate artists or producers would actually want anonymity.” True but unhelpful; very few political speakers want anonymity either, and they get it when they want it.

The labeling provision, much like the tax laws that require reporting of unlawfully earned income, is a way to criminalize conduct that naturally surrounds the core unlawful conduct, here piracy. I don’t think the First Amendment protects Briggs here, but I do think that a better First Amendment analysis would have been advisable.

Preemption: State law rights equivalent to federal copyright rights are preempted by 17 U.S.C. § 301. The question here is whether state law applies an extra element distinguishing it from a right that could be violated simply by infringing. The majority thought that omission of the transferor’s name and address was an extra element, because copyright infringement alone isn’t criminalized. This finesses what an “extra element” can be; it’s well-settled that intent to copy isn’t an extra element, because that merely narrows the number of infringements that fall within the state law. Calling an omission an extra element seems very similar to using intent that way. What if the state law, as it might, penalized failure to label an unauthorized copy as an unauthorized copy? Then it would be even clearer that the supposedly extra element is simply a natural concomitant of infringement or, as here, commercial piracy. Given that the statute is concededly supposed to remedy the harms of piracy, thus serving no purpose distinct from that of federal law, the case for preemption is strong. (I note also that there’s no fair use defense, which is especially important for other parts of the law that prohibit transferring any sounds or images without the consent of the owner of the master recording from which the sounds/images are transferred – that means that Outfoxed is criminal in Georgia regardless of its fair use of Fox News clips. That flaw is really conflict preemption rather than express preemption, but the fact that the problem comes up is further evidence that the Georgia law is a mini-copyright law, exactly what § 301 targets.)

A special concurrence by two justices argued that the statute was facially overbroad, but that it could be given a narrowing construction such that it only applied to media that had been “stolen or ‘pirated.’” (This must mean pirated, since stolen legitimate CDs would presumably be properly marked.) Because the concurrence read the majority to be implicitly applying this limit, the justices did not dissent.

A dissent by two other justices would have found for Briggs on his overbreadth claim. The law on its face prohibits “a substantial amount of constitutionally-protected speech, including anonymous political speech.” As the dissent pointed out, the state law criminalizes distribution or circulation, even without a commercial motive. Anonymous speech has important political implications, however, and the statute appears to ban it when in audio or visual form. Though the dissent doesn’t pick up on this, illustrated books or pamphlets would seem to count as media containing images, directly implicating Supreme Court precedent on anonymous political speech. (The dissent argues that the only difference between the pamphlet cases is that pamphlets are written and the speech here is recorded, which is not a relevant First Amendment difference. But a natural reading of the law here is that an illustrated pamphlet is an “article” on which “images” are “recorded,” though one could try some fancy footwork distinguishing the recording of plats from the recording of movies.)

As the dissent pointed out, the Georgia law would subject political speech to criminal penalties. “[A]n amateur film maker concerned about the deforestation of his or her neighborhood could not anonymously distribute a videotape or DVD chronicling this concern to members of his neighborhood and his elected officials.” The dissent was convinced that this problem could not be fixed by a narrowing judicial construction; if the legislature wanted to limit the law to recordings made without the consent of the owner of the master recording, it could do so (and had done so in other provisions), but the court couldn’t do so on its own.