|
|
UNITED STATES v. BILY
406 F.Supp. 726 (1975)
UNITED STATES of America
v.
Raymond M. BILY.
Crim. No. 75-457.
United States District Court, E. D. Pennsylvania.
November 13, 1975.
As Amended December 12, 1975.
James Manning, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Edward C. Connolly, Warminster, Pa., for defendant.
MEMORANDUM AND ORDERNEWCOMER, District Judge. This is a criminal prosecution under the Copyright Act, 17 U.S.C. §§ 1, 101, and 104.1 The defendant has made three pretrial motions. He moves this Court to quash the indictment, to suppress evidence, and to return seized property. Our disposition of these three motions is as follows. The motion to quash is denied.2 The motion to suppress evidence is denied as to evidence obtained in the search of January 9, 1975, except that it is granted as to the copy of the film, "White Christmas." The motion is granted as to all evidence seized in the search of January 10, 1975. The defendant's motion under Fed.R.Crim.P. 41(e) for return of seized property is denied with prejudice as to property taken in the search of January 9, 1975, with the exception of the copy of the film, "White Christmas." As to "White Christmas," and all property seized in the search of January 10, 1975, the defendant's Rule 41(e) motion is denied, without prejudice to refiling within 60 days if at such time he is prepared to present new evidence to support his contention of ownership of the seized property. IDefendant Raymond M. Bily lives in Warminster, Pennsylvania. He has maintained in his house and garage a large collection of motion picture films, and he has been listed as a collector in the 1973 International Directory of 16mm film collectors. On January 9, 1975, two special agents of the Federal Bureau of Investigation visited Mr. Bily's residence. They asked to examine his collection and to speak with him about it. Mr. Bily said that he was not surprised by the visit, since he had been told by other collectors that they had recently been called on by FBI agents. After a brief discussion with the agents, Mr. Bily signed a waiver of rights form entitled "Interrogation; Advise of Rights." The agents talked with Mr. Bily for about two hours, and then informed him that they would like to search his house. Mr. Bily consented, executing a consent to search form which included this statement: "These agents are authorized by me to take from my premises any letters, papers, materials or other property, which they may desire."
1. 17 U.S.C. § 104 provides, in pertinent part:
"Any person who willfully and for profit shall infringe any copyright secured by this title, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than $100 nor more than $1,000, or both, in the discretion of the court . . .." 2. The defendant clearly has failed to carry his burden of proving selective prosecution, which is the sole ground for his motion. United States v. Berrigan,482 F.2d 171 (3d Cir. 1973). United States v. Wilkinson,389 F.Supp. 465 (W.D.Pa.1975). 3. A copy of the Search Warrant and of the Affidavit for Search Warrant are appended to this Opinion. 4. The National Commission on New Technological Uses of Copyrighted Works, whose members are appointed by the President, is attempting to formulate some solutions to this problem. 5. "The Copyright Act (17 U.S.C.) was passed by Congress pursuant to the authority contained in the United States Constitution, which grants to Congress the power:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (Art. I, Sec. 8, Cl. 8) As the language of the clauses itself makes clear, the primary purpose of a copyright is `not to reward the author, but is rather to secure the general benefits derived by the public from the labor of authors.' Nimmer on Copyright, Vol. 1, § 3.1 (1975); citing, Fox Film Corp. v. Doyal,286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010 (1932)." American International Pictures, Inc., et al. v. Evan Foreman,400 F.Supp. 928, at 933 (S.D.Ala.1975). 6. For example, after one buys a new book from the publisher, one can resell the book without violating the Copyright Act. 7. One interpretation of the Act is that unauthorized copying
"is a fundamental and continuing infringement . . . to which the buyer of such a copy makes himself a party by selling it or performing the work for profit." United States v. Wells,176 F.Supp. 630, 635 (S.D. Texas 1959) The quotation is part of a discussion of Judge Learned Hand's opinion in Foreign & Domestic Music Corp. v. Licht,196 F.2d 627 (2d Cir. 1952). 8. The fair value factor was emphasized in a Supreme Court opinion which posed the test,
"whether or not there has been such a disposition of the article that it may fairly be said that the patentee [or copyright proprietor] has received his reward for the use of the article." United States v. Masonite Corporation,316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461 (1942), quoted in Platt & Munk Co. v. Republic Graphics, Inc.,315 F.2d 847, 854 (2nd Cir. 1963). The Court duly noted, however, that the fair value question was subsidiary to the societal interests which the patent monopoly was designed to serve. "[T]he promotion of the progress of science and the useful arts is the `main object'; reward of inventors is secondary and merely a means to that end." 316 U.S. at 278, 62 S.Ct. at 1077. See also, Burke & Van Heusen, Inc. v. Arrow Drug, Inc.,233 F.Supp. 881, 884 (E.D.Pa.1964). 9. The instant case involves even more complex distribution systems. The practices of seven major film producers were examined in American International Pictures, Inc. v. Foreman,400 F.Supp. 928 (S.D.Ala.1975). It was found that the plaintiff film producers did not carry their burden of proving that the films sold by the defendant, allegedly in violation of the Copyright Act, had not been the subject of first sales. In the case before us, we heard the testimony of the government's expert that the copyright owners of some of the copies found in Bily's possession had not sold any copies of those films. This statement did not appear in the affidavit for search warrant. If this conclusory statement had so appeared, it would have needed further factual support at the hearing to be given full weight, considering that in American International Pictures, supra, each of the plaintiffs claimed "that it [had] never sold or given away any print of any of the motion pictures on which infringement is alleged", yet the court found that none of them proved that claim. 440 F.Supp. at 929. 10. See footnote 7, supra. 11. At the hearing, the defendant's expert testified that the copyright proprietors of some of the feature films in the defendant's possession had not sold any copies of those films. (See footnote 9) Assuming for the moment that they neither sold outright, nor entered leases or other agreements which might be construed to be a first sale, that statement increases the likelihood that the defendant "unlawfully obtained" some of his films. If his possession was unlawful, his vending of said films would be an infringement. However, this statement was not contained in the affidavit for search warrant. Therefore we do not reach the question whether the showing on the issue of unlawful possession, together with the allegations about vending and profit-making, would have constituted probable cause. 12. Cf. United States v. Armocida,515 F.2d 29 (3d Cir. 1975). In Armocida, the Court of Appeals interpreted a provision in the wiretapping statute which requires some showing in the affidavit for a wiretap that normal investigative techniques "reasonably appear to be unlikely to succeed if tried." 18 U.S.C. § 2518(3)(c). 13. It took five agents and a technician approximately nine hours to select and remove the 2,702 reels of film that were seized. 14. By listing his name in at least one directory. 15. First Amendment values also are implicated in the instant case.
|
|