Monday, April 25, 2005

Using camera phone at movie theater Texas' most likely 1,942nd felony

The criminalization of civil life continues this week with robust enthusiasm.

On Tuesday the Texas House will consider HB 1871 by Keel, which would make
operating an audio-visual recording device inside a theater while the movie's running Texas' 1,942nd felony. Under the current language of the bill, you don't even have to be recording the movie -- you could point a camera phone away from the screen to take a video snippet of your friends, and it would still be a crime.

Mike Ward reported on the Statesman's legislative blog when the Senate approved its companion, SB 481, which makes the same offense a Class A misdemeanor on the first offense, a state jail felony on the second offense, and a third degree felony on the third offense. Clay Robison at the Houston Chronicle also covered it.

House Criminal Jurisprudence Committee Chairman Terry Keel's House companion
makes the same act a state jail felony no matter how many times you do it. The Motion Picture Association of America wrote the original legislation, and both versions raise serious concerns about overreach. Camera phone users: Beware the Premiere Patrol, Adina noted.

A Grits commenter had an update on the House bill. The blogger over at Stone Bridge lives in Keel's district. He saw Grits' post and wrote to Rep. Keel. Here's his
somewhat fulsome letter. Keel personally responded to say he planned to fix one of the problems with a floor amendment.
A reporter shared the proposed language with ACLU, which states the device would have to be operated "with the intent to record the motion picture."

That's a lot better, but there's still
no "fair use" provision in the bill - recording inside the theater for one second, even for non-commercial purposes, is enough to trigger the charge. The current version would punish even the film teacher who captured 20 seconds of Sin City to show her class the cinematography. That sort of non-commercial recording used to be protected and legal under the "fair use" concept, but Keel's bill would criminalize it and make it a felony.

That's why, to me, if you're going to create a brand new crime of previously legal behavior, it should start as a misdemeanor, not a felony -- the "felon" label harms folks more, in the end, than their time spent incarcerated. There's no sense pinning that tag on teenagers who snip 20 seconds of a movie with their cameraphone. Plus, a misdemeanor charge would send new prisoners to the county lockup instead of Texas state jails.

The bill is unnecessary, anyway. Congress just passed a new law that punishes illegally recording a movie with three years in federal prison, and selling the recording with 6 years. Why not let the feds pay to incarcerate these offenders?

Plus, if folks are actually stealing the movie as part of a commercial piracy operation, they can already be prosecuted under existing felony theft statutes. Keel told his constituent that Grits "incorrectly stated that the act was already illegal," but movie piracy is illegal now. This law is an add on that makes the use of a piece of technology illegal, much like trying to criminalize using a VCR instead of merely enforcing copyright restrictions. It's intended to be piled on top of other charges. On that score, the plain language in both the House and Senate bills states:

If conduct constituting an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.
That sounds to me like the redundancy is contemplated. Otherwise, why would it be there?

As a writer, I'm sympathetic to the argument that those who produce creative works are entitled to profit from them. As drafted, though, this law overreaches to criminalize conduct that has nothing to do with movie pirating, and imposes serious penalties for minimalist copying that historically would have been considered "fair use." The floor amendment will help, clarifying that recording is illegal only if it records the movie. Lower the punishment to a misdemeanor and add a fair use provision, then I'd feel a lot better about it.

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