07 LC 29
2663ER
Senate
Bill 135
By:
Senators Hamrick of the 30th, Reed of the 35th and Mullis of the 53rd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 3 of Chapter 8 of Title 16 of the Official Code of Georgia
Annotated, relating to criminal reproduction and sale of recorded material, so
as increase penalties for reproducing, transferring, selling, distributing, or
circulating certain recorded material; to provide for forfeiture of certain
items; to provide for additional restitution as it relates to violation of Code
Section 16-8-60, relating to reproduction of recorded material, transfer, sale,
distribution, and circulation; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
3 of Chapter 8 of Title 16 of the Official Code of Georgia Annotated, relating
to criminal reproduction and sale of recorded material, is amended by revising
Code Section 16-8-60, relating to reproducing, transferring, selling,
distributing, or circulating certain recorded material, as follows:
"16-8-60.
(a)
It is unlawful for any person, firm, partnership, corporation, or association
knowingly to:
(1)
Transfer or cause to be transferred any sounds or visual images recorded on a
phonograph record, disc, wire, tape, videotape, film, or other article on which
sounds or visual images are recorded onto any other phonograph record, disc,
wire, tape, videotape, film, or article without the consent of the person who
owns the master phonograph record, master disc, master tape, master videotape,
master film, or other device or article from which the sounds or visual images
are derived; or
(2)
Sell; distribute; circulate; offer for sale, distribution, or circulation;
possess for the purpose of sale, distribution, or circulation; cause to be sold,
distributed, or circulated; cause to be offered for sale, distribution, or
circulation; or cause to be possessed for sale, distribution, or circulation any
article or device on which sounds or visual images have been transferred,
knowing it to have been made without the consent of the person who owns the
master phonograph record, master disc, master tape, master videotape, master
film, or other device or article from which the sounds or visual images are
derived.
(b)
It is unlawful for any person, firm, partnership, corporation, or association to
sell; distribute; circulate; offer for sale, distribution, or circulation; or
possess for the purposes of sale, distribution, or circulation any phonograph
record, disc, wire, tape, videotape, film, or other article on which sounds or
visual images have been transferred unless such phonograph record, disc, wire,
tape, videotape, film, or other article bears the actual name and address of the
transferor of the sounds or visual images in a prominent place on its outside
face or package.
(c)
This Code section
does
shall
not apply to any person who transfers or causes to be transferred any such
sounds or visual images:
(1)
Intended for or in connection with radio or television broadcast transmission or
related uses;
(2)
For archival purposes; or
(3)
Solely for the personal use of the person transferring or causing the transfer
and without any profit being derived by the person from the
transfer.
(d)
Every person
convicted of violating
Violation
of this Code section
is
shall be
guilty of a felony and
is
punishable upon conviction
shall be
punished as follows:
(1)
Upon first conviction, by a fine of not
less than
$500.00 nor more than
$25,000.00,
or
by imprisonment for not less than one year nor more than two years
and the judge
may suspend, stay, or probate all but 24 hours of any term of
imprisonment, or both
such
fine and imprisonment;
(2)
For the second
or
subsequent violations of
conviction of
violating this Code
section,
shall be
punishable upon conviction by a fine of
not less than
$1,000.00 nor more than
$100,000.00,
or
by imprisonment for not less than one year nor more than three years
and the judge
may suspend, stay, or probate all but 48 hours of any term of
imprisonment, or both
such
fine and
imprisonment;
or
(3)
For the third or subsequent conviction of violating this Code section, by a fine
of not less than $2,000.00 nor more than $250,000.00, by imprisonment for not
less than two nor more than five years and the judge may suspend, stay, or
probate all but six days of any term of imprisonment, or both such fine and
imprisonment.
(e)
This Code section shall neither enlarge nor diminish the right of parties to
enter into a private contract.
(f)(1)
Any person, firm, partnership, corporation, or association that is convicted of
or pleads nolo contendere to a violation of this Code section shall forfeit to
this state any and all interest as the person, firm, partnership, corporation,
or association may have in any and all property associated with a violation of
this Code section including, but not limited to:
(A)
Any phonograph record, disc, wire, tape, videotape, film, or other article on
which sounds or visual images have been transferred;
(B)
Any reproduction equipment, scanners, computer equipment, printing equipment, or
other asset, used to commit a violation of this Code section; and
(C)
Any property constituting or directly derived from gross profits or other
proceeds obtained from a violation of this Code section.
(2)
Any person, firm, partnership, corporation, or association that is charged with
a violation of this Code section shall forfeit to this state, after 90 days of
the charging of the violation of this Code section, in the absence of written
objection by the defendant, any and all interest as the person, firm,
partnership, corporation, or association may have in any phonograph record,
disc, wire, tape, videotape, film, or other article on which sounds or visual
images have been transferred, that amount to cumulative evidence in the case at
issue. Such articles shall be deemed contraband and subject to
destruction.
(g)
For purposes of imposing restitution pursuant to Chapter 14 of Title 17 when a
person is convicted pursuant to this Code section, the court shall consider
damages to any owner or lawful producer of a master phonograph record, master
disc, master tape, master videotape, master film, or other device or article
from which sounds or visual images are derived, or to the trade association
representing such owner or lawful producer that has suffered injury as a result
of the violation of this Code section. Restitutions shall be based upon the
aggregate wholesale value of lawfully manufactured and authorized recorded
devices corresponding to the nonconforming recorded devices involved in the
violation of this Code section and shall also include reasonable investigative
costs related to the detection of the violation of this Code
section."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.