Appeal from the Circuit Court of Cook County. No. 04 CR 7437 The Honorable Stuart E. Palmer, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
Following a bench trial, the defendant, Paul Williams, was convicted of two counts of unlawful use of recorded sounds or images in violation of section 16-7(a)(2) of the Criminal Code of 1961 (the Code) (720 ILCS 5/16-7(a)(2) (West 2004)), and two counts of unlawful use of unidentified sound or audio visual recordings in violation of section 16-8 of the Code (720 ILCS 5/16-8 (West 2004)). He was sentenced to two years' probation and 60 days' time served in the Cook County jail and was assessed costs and fines.
The defendant contends on appeal that: (1) all four of his convictions are null and void because the federal Copyright Act of 1976 (17 U.S.C. §101 et seq. (2000)) preempts the State's regulation of his activities in this case; (2) section 16-8 of the Code violates the due process clauses of the Illinois and United States Constitutions; and (3) the evidence was insufficient to prove his guilt beyond a reasonable doubt.
It was established at trial that after midnight on March 10, 2004, the defendant entered the Bubble Land laundromat at 5101 South Western Avenue in Chicago, where Valerie Herrera was working as an attendant. Herrera testified the defendant attempted to sell compact discs (CDs) for $5 and digital video discs (DVDs) for $10 from a black suitcase while inside and outside the laundromat. Herrera notified the police by activating the laundromat's panic button.
Chicago police officer Tracy Hoover responded to the call and testified that she and her partner parked their squad car near the laundromat in an attempt to observe any transactions of the defendant. During this surveillance, lasting approximately 10 minutes, Hoover observed two transactions where the defendant and an individual exchanged money for what appeared to be CDs. She could not see the titles.
Officer Hoover and her partner approached the defendant, questioned him, and learned that he did not have a permit to sell merchandise. Hoover estimated that there were between 250 and 300 CDs and DVDs, which she perceived to be "fake," in the defendant's suitcase. She recognized one DVD as that of the movie "The Passion of the Christ," which was playing in movie theaters at the time. She recognized certain CDs as those of "rap artists." The CDs lacked the colorings that CDs purchased from a store would have. Although the defendant's CDs were wrapped in plastic, they were not heat-sealed and did not have security tape on them. Hoover arrested the defendant and inventoried the suitcase with the DVDs and CDs inside. At trial, Hoover identified People's Group Exhibits 1-A through 1-C as photocopies of photographs of CDs or DVDs the defendant had in his possession.*fn1
J. Martin Walsh, a former postal inspector and the current supervisor of investigations for the Recording Industry Association of America (RIAA), also testified at trial. At approximately 11 a.m. on March 10, 2004, Walsh went to the Ninth District police station, where he was shown a black suitcase containing approximately 200 CDs. Walsh examined, "picked up" and "looked" at, 10 to 20 of them. Defense counsel stipulated that Walsh was "an expert in determining counterfeit DVDs [and] CDs."
Walsh discussed three types of CD piracy:
(1) counterfeits; (2) piratical mixes; and (3) bootlegs.*fn2 A "counterfeit CD" results where an existing CD and the artwork from its covers are duplicated. A "piratical mix" results where songs are taken from different artists and put together as a compilation or "mix." A "bootleg" is an unauthorized recording of a live concert.
According to Walsh, the discs he examined in the suitcase were not actually CDs but instead were "compact disc recordables" or "CDRs." Walsh looked to several factors in order to determine whether they were counterfeits or pirates. First, while all "legitimate" music is manufactured and distributed on pressed and molded CDs, "illegal" music is "burned" onto CDRs. Second, while CDs are manufactured at plants and contain artwork on their covers, the defendant's CDRs contained photocopies of the covers, which appeared faded and improperly cut. Third, the defendant's CDRs did not have "the true name and address of the manufacturer displayed on the cover." Fourth, while the center ring of CDs has a "SID code," consisting of an "IFPI number" identifying the plant where the CD was manufactured and a second IFPI number identifying the master copy from which the CD was made, the defendant's CDRs omitted this information. Fifth, while the underside of a "legitimate" CD is silver, the underside of the discs the defendant possessed had a bluish-green tint, indicating they were CDRs.
According to Walsh, it is important to determine when looking at a compilation disc whether any work of the "five major labels" -- Universal, Sony, EMI, BMG, and Time-Warner -- is included. According to Walsh, the five major labels covered approximately 90% of the recording industry. The remaining 10% are considered "independent" and are free to manufacture, distribute, and sell their product "in any format and in any arena." However, if a CDR contains 15 songs and one of them is covered by a major label, the entire disc is illegal. The following also transpired on direct examination.
"Q: Okay. When -- Did you have an opportunity to examine on March 10, 2004, any compilation disks?
Q: When you examined the compilation disks, with regard to your determination of whether or not it was a pirate, what did you decide after looking at them?
A: Yes. Those were also illegal 5 copies. They were CDRs, and they contained songs by artists that were covered by the five major labels and clearly were not authorized for this distribution."
Walsh also testified that while at the station, he examined one CDR entitled "It's Too Short." The photocopied advertisement label contained the trademark for Jive Records, a sublabel of an RIAA major label. The disc lacked the identifying marks of a legitimate CD. This indicated to Walsh that the CDR was "illegally manufactured and [was] being distributed without at the very least the proper labeling and certainly without the consent of the licensee." Walsh identified People's Group Exhibit 1-A as a photocopy of the disc and a photocopy of the front and back covers of the recovered disc.
Walsh identified the second page of People's Group Exhibit 1-A as a photocopy of a CDR entitled "Too Short 2 B Married 2 Da Game," also released on Jive Records. Walsh identified the disc as a CDR because it contained the trademark for Hewlett-Packard, a CDR manufacturer. The disc lacked any identifying markings in its inner ring. In Walsh's opinion, the discs contained in People's Group Exhibit 1-A were "counterfeit," "burned" copies.
Walsh identified page one of People's Group Exhibit 1-B as a photocopy of the front and back covers of a disc entitled "Blood in My Eye" by the artist Ja Rule, who is covered by one of the labels the RIAA represents. Page two of the exhibit was a photocopy of the actual disc, which was a CDR. In Walsh's opinion, the disc contained in People's Group Exhibit 1-B was a "counterfeit," "burned" copy.
Walsh identified People's Exhibit 1-C as a photocopy of the back cover and CDR of a compilation of music by different artists. Walsh determined that it was a pirated copy and that at least five of the artists, including Ludacris and R. Kelly, were covered by one of the major labels. In Walsh's opinion, the disc contained in People's Exhibit 1-C was a "burned copy" and "a mix of various artists" that was "piratical." According to Walsh, none of the 10 to 20 discs that he examined on March 10, 2004, were made with consent of the recording industry. Walsh was not asked, and did not testify, about whether he listened to any of the discs.
Walsh testified on cross-examination that he did not look at all of the CDs in the defendant's suitcase, but viewed only a sampling. Walsh also acknowledged that some CDRs, in certain circumstances, are "legal." He additionally stated that although he noticed that the suitcase contained DVDs, he "didn't look at those." He also stated that he did not represent the Motion Picture Association of America (MPAA).
The defendant moved for a directed finding of not guilty on counts II and IV, charging the lack of consent on the part of the MPAA, arguing that the State failed to present any testimony on behalf of the MPAA. The trial court found Officer Hoover's testimony that she saw a DVD entitled "The Passion of the Christ," which was still in theaters, sufficient to prove lack of consent and denied the motion.
The defense rested. In his closing argument, defense counsel distinguished this case from a case involving a controlled substance, arguing that although it is a crime in Illinois to possess a controlled substance, with or without the intent to sell, the statutes the defendant was charged with violating only prohibited the intentional or knowing sale or offering for sale of unauthorized or unidentified DVDs or CDs. Mere possession of such DVDs or CDs was not a crime. Defense counsel continued:
"Now the expert in this case has testified that some CDRs are legal, and also more importantly, judge, he didn't examine the entire suitcase. There were some  to 300 DVDs and CDs in that suitcase. He looked at a sampling of them, and some of them were bootleg. We don't contest that, but possession of bootleg items is not a crime.
And it's the State's responsibility, it's their duty to prove beyond a reasonable doubt that this defendant knowingly offered for sale bootleg movies.
And since no one in this case saw or heard any of the titles that were allegedly offered for sale or sold and since the expert in this case didn't examine the entire thing to see if, perhaps, there were legal movies in there, the State has not met their burden of proving that this defendant offered for sale sounds recorded.
All they've proven, judge, is that he had some in his possession. Again I reiterate possession is not a crime."
Defense counsel also argued the State failed to prove the defendant knew the items in the suitcase "were bootleg," arguing that the defendant was a street seller without the expertise of a representative from the RIAA. The court rejected these arguments and found the defendant guilty of all four counts. ...