The government can keep seized property, even if you are not guilty.

The copyright holders are owners of the recorded material, but not the actual compact discs. The state would have no right to give Cohen's property (the plastic discs themselves) to the copyright holders, now would they.


The law, once again, apparently does not make possession of wrongfully produced materials illegal -- only production, publication and sale of them. So once again, I don't see how per the LAW the CDs are "contraband."


-azurefly
 
A copyright is the legal and exclusive right of the author of a creative work to control the copying of that work. Violation of copyright makes the medium the work is on, contraband.

A criminal infringement involving more than 1 copy within 180 days and value over $1000 was made a felony in 1997 - Title 17, Chapter 5, § 506(a)(2). (See also the DCMA)

The entire Title 17 code can be found here.

I was wrong about turning the contraband over to the copyright owners. § 506(b) says the stuff is to be destroyed subsequient to a conviction. Apparently, the NH Supreme Court is referencing their own laws.
 
Antipitas said:
A copyright is the legal and exclusive right of the author of a creative work to control the copying of that work. Violation of copyright makes the medium the work is on, contraband.
Click to expand...


I am still under the impression that the law makes the copying the crime, not possession of the copies.

They did not prove that the guy made the copies, and thus did not get him on those grounds.

If the law doesn't say that it's a crime to possess the broken-copyrighted materials, the law doesn't say that it's a crime to possess the broken-copyrighted materials, and thus the authorities ought to have to give them back to whatsisname. THEN if he tries to sell them, which IS against the law, they could nail him. He would be best advised to destroy them himself. You could argue that the police are doing him a favor, but it still is wrong for them to keep ANY fruit of a seizure that is not upheld by a criminal conviction.

-azurefly
 
"Making these was illegal, but here ya go."

Kind of a funny thing for a State to say to someone, I think.

But what about when the contraband in question is a few hundred thousand dollars?

"We're not really sure you're a criminal, so we're not charging you with anything, but we're pretty sure you're a criminal, so we're just going to keep that pile of loot."

That's kind of a funny thing for a State to say to someone as well, IMHO.
 
azurefly said:
I am still under the impression that the law makes the copying the crime,...
Click to expand...
Correct, so far.
not possession of the copies.
Click to expand...
Maybe, maybe not. Depends upon States law. But...
They did not prove that the guy made the copies,...
Click to expand...
Right. The DA couldn't prove this. But they did prove that the CD's were in fact unlawful copies. Being that the copies were unlawful, that very fact makes them contraband. Add to this that Cohen now knows that the copies are unlawful and therefore contraband.

The State is simply not going to hand over contraband material (unlawful copies of copyrighted material) to Cohen, or anyone else. That would make the State complicit in copyright infringement.

I don't know what's so hard to understand about this.

The State suspected that Cohen was making unlawful copies of copyrighted material and selling these copies (doesn't even matter if he was giving them away, it's still copyright infringement and a civil offense, possibly a criminal offense if Cohen meets the requirements of §506(a)(2)). Regardless, the State proved that the copies were unlawful copies. What it couldn't prove was that a) Cohen made them or b) that Cohen knew (the mens rea) the copies were unlawful when he got them from that unnamed third party.

At any rate, the state dropped all counts but one. Took Cohen to trial on the one count the DA felt he could prove... And failed. Cohen gets off. But the CD's still contain unlawful material. Cohen can't take possession of unlawful material, regardless of what the material is copied onto.

The dissenting judges are trying to fudge the issue by saying that the property (the CD's) still belongs to Cohen. The dissent dismisses the fact that the CD's contain copyrighted material that was unlawfully copied.

publius42, this is not a case of asset forfeiture. It is a case of copyright infringement. Apples and oranges.
 
Here is the distinction.

The guy who possessed the CDs was not found guilty of breaking copyright laws. As Antipitas stated, no mens rea. He suffers no criminal penalty.

HOWEVER, the CDs were determined to be criminally made, and therefore deemed to be contraband. Therefore, they are not returned.


(Don't you wish the courts/judicial system would make the same distinction for gun owners who have no clue that one type of gun accessory is "illegal"?)
 
Antipitas said:
publius42, this is not a case of asset forfeiture. It is a case of copyright infringement. Apples and oranges.
Click to expand...
Yeah, I know, but azurefly was trying to make this thread about asset forfeiture, and I couldn't resist helping. ;)
 
Right. The DA couldn't prove this. But they did prove that the CD's were in fact unlawful copies. Being that the copies were unlawful, that very fact makes them contraband.
Click to expand...

I disagree.

Why did a judge say that no, it does not? (She may have been in the dissent, the losing side, but she's a judge and she didn't see it this way.)

There was a law broken when someone made the copies. That does not make the copies illegal for someone to possess.

What if they gave the copies back to the copyright holder? The fact that the true owner of the intellectual property now has the copies does not change the fact that "the CD's are contraband," right? They are what they are, not dependent on who now possesses them. But someone here proposed giving them back to the copyright holder, as though that would put things right.

I am arguing that they are NOT necessarily contraband just because a law was broken to make them. And the law, as the lady judge pointed out, DOES NOT ADDRESS POSSESSION, only production and publication.

Some of you are ignoring salient facts.


-azurefly
 
azurefly, I gave you the link to Title 17 of the federal code. That's copyright law. That link also includes the link to the Code of Federal Regulations (CFR). You need to read not only Title 17, but the related CFR.

If you aren't willing to do this, then you will never understand the proscriptions the Court was talking about. That is, what makes certain copyrighted material contraband in the first place.

While copyright law is rather involved, the points being made in this case are well settled. You don't have to believe me, however. I can give you the names of several copyright attorneys, with which you could check.... At about $800 an hour. I went that route back in the early '90's when I was still writing software.
 
You must log in or register to reply here.
Back
Top