Other Articles - The Federal Anti-Piracy and Bootleg FAQ
The following information was obtained from the Recording Industry
Association of America. Be sure to visit their web site
at http://www.riaa.com.
Overview
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Sound Recording Piracy
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The Victims |
Effects Of The Law
Overview of the Federal
Anti-Bootleg Statute
With President Clinton's signing of the General Agreement on Tariffs and
Trade (GATT) in December 1994, a federal anti-bootleg statute was created.
Up until then, generally only state statutes had been available to law
enforcement and the RIAA's anti-piracy unit to protect artists' recording
rights against bootleggers.
Like the pre-existing state statutes, the new federal statute criminalizes
the unauthorized manufacture, distribution or trafficking in sound
recordings and music videos of "live" musical performances. However, the
federal statute also provides for the seizure of bootleg recordings or music
videos manufactured outside the United States by U.S. Customs at the point
of importation. In effect, bootleg recordings are now subject to seizure
and forfeiture in the same manner as other property in violation of customs
laws. The maximum penalties for violating the new law are imprisonment up
to 10 years and/or a fine of $250,000.
The RIAA's anti-piracy unit coordinates the initial examination of product
on behalf of the recording industry. If you wish to report suspected
bootleg recordings, call RIAA at 1-800-BAD-BEAT and ask for the Customs
Desk or e-mail us at NoPiracy@NOSPAMGhostmail.com*.
* [ Note: Remove "NOSPAM" to reply by e-mail. ]
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What Is Sound Recording Piracy?
Sound recording piracy and counterfeiting have adversely affected the
recording industry since its earliest days, but with the development of tape
technology, record piracy has become a major criminal activity. Music
pirates account for almost $300 million in lost record sales annually in the
United States. And, because the potential profits record pirates can earn
are enormous, an increasing number of people are attracted to it.
Unlike a record company, the pirate bears none of the initial cost of
searching for talent, creating, producing, marketing and publicizing a
recording, which can add up to millions of dollars. Nor does a pirate pay
union fees, artists, back-up vocalists and musicians, publishing/songwriter
royalties or taxes. Beyond the cost of purchasing a single commercial copy
for use as a master, the pirate incurs only a per unit manufacturing cost of
well under a dollar.
The general term 'piracy" refers to the illegal duplication and
distribution of sound recordings and takes three specific forms:
counterfeit, pirate and bootleg.
Counterfeit recordings are the unauthorized recording of the
prerecorded sounds, as well as the unauthorized duplication of original
artwork, label, trademark and packaging of prerecorded music. Counterfeit
recordings usually display the following characteristics:
- Produced by obtaining a legitimate recording and duplicating
subsequent counterfeit copies and reproducing artwork and packaging. Scale
of the reproduction facilities ranges from backroom operations using cheap
dual cassette players and rented photocopiers to illegal factories equipped
with professional commercial sound reproduction and printing equipment.
- Almost always found in cassette format but occasionally as long
playing vinyl albums (particularly of back catalog recordings). Counterfeit
CDs are also beginning to appear.
- Street prices of counterfeit cassettes range from $3 to $5 compared
to legitimate recordings that generally range from $7 to $10.
- Jackets, labels and insert cards tend to have blurred printing,
poorly reproduced colors or photographs. Insert cards are sometimes made of
paper rather than heavy card stock and usually do not carry liner notes or
lyrics. The sealed folds from shrink-wrapping are often looser or sloppier
than the original product.
Pirate recordings are the unauthorized duplication of only the
sounds of one or more legitimate recordings. Pirate recordings usually
display the following characteristics:
- Produced by procuring legitimate recordings and duplicating them.
- Format of choice is audio cassette, occasionally vinyl albums and,
increasingly, CDs.
- Street value is around $10 for a 90-minute compilation tape.
- Unauthorized compilations (collection of different recordings by
one or more artists compiled as a package) of different artists are
common on pirate tapes.
- Cassette packaging is inferior, generally uses only one color,
minimal artwork and a typewritten or crudely printed list of tape
contents. Generic artwork may be used instead of photographs or pictures
of the recording group or artist.
- Unfamiliar or fictitious company names of alleged manufacturers or
distributors are often listed or no company names are listed at all.
Bootleg recordings are the unauthorized recording of a musical
broadcast on radio or television or of a live concert. Bootlegs, also known
as underground recordings, usually display the following characteristics:
- Produced by taping live concerts using a portable cassette recorder,
or taping directly by tapping into the venue's sound system or illegally
procuring studio outtakes.
- Still found in long playing vinyl album format, occasionally in
cassette format and increasingly in CD format.
- Street value ranges from $15 to $100.
- Vinyl packaging usually includes a two-colored sheet of printed
paper describing contents of the album and attached to the jacket cover
by adhesive backing or loose and inserted under shrink-wrap.
- CD packaging usually incorporates a multi-colored insert of a
folded sheet of paper as opposed to a multi-page booklet.
- Name or trademark of the performer's legitimate record company is
not included, but names of fictitious manufacturers often are.
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Who Gets Hurt By Piracy?
Consumers are the ultimate victims of sound piracy. Most illegal
recordings are inferior in sound quality, often defective and sometimes are
of an artist other than the one represented on the packaging. And as
illegal recordings cannot be or exchanged, the consumer is stuck with the
inferior product. In addition, the financial loss incurred by record
companies, as a result of piracy, ultimately drives up the price of
legitimate product.
Retailers and distributors lose sales to pirates because they cannot
compete with the low prices charged for cheaply-produced, illegal copies.
In some cities, illegal street vendors sell counterfeit cassettes literally
on the doorsteps of legitimate retailers. According to legitimate
retailers, these street vendors can usurp 35 to 40 percent of their
business.
Recording artists, producers, composers, publishers of the
compositions, musicians and vocalists who helped make the record, as well
as musicians' unions, are all cheated by pirates out of their share of
royalties. These people in the music community generally depend on
royalties for their livelihoods, but more important their reputations are
damaged when consumers unknowingly purchase poor quality copies of their work.
Record companies invest a great deal of artistic and technical
skill, money and effort to create the master recording from which legitimate
commercial copies are made. These companies also expend huge sums to search
for, develop and popularize performers. Pirates do not bear the continuing
costs of union fees, as well as contractual and statutory royalty payments.
In today's marketplace, 85 percent of the records released do not
recover production costs. Record companies rely on income from the 15
percent of recording that are successful to subsidize less profitable types
of music (classical, jazz), new performers and composers.
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What Does the Law Do?
For many years, the unauthorized duplication of sound recordings, though
always a problem for the recording industry, remained relatively stable.
However, by 1962 record piracy had increased to a point that Congress
enacted a statute making it a crime to transport, with fraudulent intent,
records with forged or counterfeit labels.
With the development of tape recording, 8-track cartridge and cassettes, as
well as high-speed, relatively low-priced duplicating equipment, the piracy
problem began to grow at an alarming rate. Congress responded to the crisis
by enacting the Sound Recording Amendment Act of 1971. Today, record, tape
and CD piracy activities encompass crimes punishable on both the federal and
state level.
Federal Laws
The three primary federal laws used to combat this crime are:
- 1) U.S. Copyright Law {Title 17 U.S.C. Section 101 et seq., Title
18 U.S.C., Section 2319 and Section 2319A}: The federal law protects sound
recordings first "fixed" as of February 15, 1972. The law protects
copyright owners from the unauthorized reproduction or distribution of sound
recordings to the public. Section 2319 applies only to those recordings
that are "fixed" with authorization on or after February I 5, 1972 (that is,
when the performance is put into a tangible form such as a tape, record or
CD).
Those recordings "fixed" prior to February 15, 1972, are protected by
criminal law through a state's unauthorized duplication statute. On the
civil side, recordings are protected by a state's competition laws.
Criminal sound recording copyright infringements are punishable by up to
five years in prison and $250,000 in fines. Repeat offenders can be
imprisoned up to 10 years. Individuals may also be held civilly liable to
the copyright owner for actual damages or lost profits or for statutory
damages up to $100,000 per infringed copyright.
- 2) Trafficking In Counterfeit Labels {Title 18 U.S. C., Section
2318}: This statute covers counterfeit labels intended to be affixed to a
sound recording. A "counterfeit label" includes any component of the entire
package of a prerecorded audio cassette, company disc or album cover. The
definition also extends to a situation where counterfeiters have simulated
"genuine" labels that have not previously existed. A person can be
convicted under this law for trafficking in a finished product that contains
a counterfeit label, as well as a component of that product, such as the
insert card for an audio cassette. This statute imposes penalties of up to
five years in prison and/or $250,000 in fines.
- 3) Trademark Counterfeiting {Title 18 U.S.C. Section 2320}: This
statute deals with sound recordings that also contain the counterfeit
trademark of the legitimate manufacturer or artists. The statute covers the
"trafficking" as well as attempting to traffick goods containing the
counterfeit marks. The penalties imposed by this statute for legal
entities, such as corporations, range from $1 million to $5 million.
Penalties for individuals range from five years in prison and/or $250,000 in
fines to 15 years in prison and/or $1 million in fines.
- 4) Anti-Bootleg Statute {Section 2319A}: This federal anti-bootleg
statute was created in December 1994. Like the pre-existing state statutes,
the new federal statute criminalizes the unauthorized manufacture,
distribution or trafficking in sound recordings and music videos of "live"
musical performances. However, the federal statute also provides for the
seizure of bootleg recordings or music videos manufactured outside the
United States by U.S. Customs at the point of importation. In effect,
bootleg recordings are now subject to seizure and forfeiture in the same
manner as other property in violation of customs laws.
State Laws
Nearly all states have piracy related laws that make it a criminal offense
to pirate, counterfeit or bootleg audio recordings. The three most commonly
used state laws are:
- 1) True Name and Address Statute: This statute mandates the actual
name and address of the manufacturer of a sound recording be displayed on
the packaging. Because pirates, counterfeiters and bootleggers generally do
not display their true name and address on illegal product, they are usually
in violation of this statute. All sound recordings, regardless of the date
of fixations are covered under this statute.
- 2) Unauthorized Duplication Statute: Pirate and counterfeit sound
recordings "fixed" prior to February 15, 1972 are covered by this statute.
- 3) Anti-Bootleg Statute:Arenas, promoters and performers are
protected against piracy under this statute, making it a crime to
manufacture the sounds of a live performance of an artist and to distribute
these reproductions.
Many of these state statutes carry a maximum penalty of up to five years in
prison and a $250,000 fine; other state statutes carry misdemeanor penalties.
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