CopyCited 10 times | Published | Supreme Court of Georgia | Nov 29, 2006 | 281 Ga. 329, 80 U.S.P.Q. 2d (BNA) 1938, 2006 Fulton County D. Rep. 3716
...Supreme Court of Georgia. November 29, 2006. *293 John Walter Donnelly, Athens, for Appellant. Kenneth W. Mauldin, C. Rebecca Smith, Athens, for Appellee. THOMPSON, Justice. We granted an interlocutory appeal in this case to determine whether OCGA §
16-8-60(b), which criminalizes the possession and distribution of sounds or images without a label bearing the name and address of the transferor or the sounds or images, is either (1) unconstitutionally vague or overbroad, or (2) preempted by federal copyright law. The short answer to these questions is "no." Defendant, who was found in possession of 52 individually wrapped compact discs that allegedly bear unauthorized reproductions of recorded material, was indicted for violating OCGA §
16-8-60(b), which provides, in pertinent part: It is unlawful for any person ....
...Defendant attacked the statute and moved to dismiss the indictment on constitutional and federal preemption grounds. In granting defendant's application for interlocutory appellate review, we posed these questions: (1) Did the trial court err in its determination that OCGA §
16-8-60 is neither unconstitutionally vague nor overbroad? (2) Did the trial court err in its determination that OCGA §
16-8-60 is not preempted by federal copyright law? *294 1. Unconstitutionally vague. Defendant asserts that the phrase "transferor of the sounds or visual images," found in OCGA §
16-8-60(b), is inherently vague and renders the statute unconstitutional....
...rest that is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedom is no greater than necessary to further the governmental interest. State v. Miller,
260 Ga. 669, 671,
398 S.E.2d 547 (1990). OCGA §
16-8-60(b) meets the O'Brien test....
...titute a state created cause of action, then the right does not lie "within the general scope of copyright," and there is no preemption. Collezione Europa U.S.A. v. Hillsdale House, 243 FSupp2d 444, 449 (M.D.N.C. 2003). The statute in question, OCGA §
16-8-60(b), criminalizes the sale, or the possession for purposes of sale, of recordings which do not carry a label identifying the "transferor" of the sounds, regardless of their copyright status....
...eadth is "not only real but substantial as well, judged in relation to the law's plainly legitimate sweep." Broadrick v. Oklahoma,
413 U.S. 601, 615,
93 S.Ct. 2908,
37 L.Ed.2d 830 (1973). However, unlike the dissent, I would not needlessly cast OCGA §
16-8-60(b) aside but rather would fulfill this Court's responsibility to effectuate the legislative intent and save it by means of a narrowing construction that would limit its application to media that has been stolen or "pirated." Because the ma...
...this Court declined to follow the dissenting position, which would have required us to rewrite the statute and substitute an intent the Court selected for the intent expressly chosen by the Legislature. The dissent in this case now asserts that OCGA §
16-8-60(b) must be cast aside because of an overbreadth in its language that this Court cannot cure by means of a narrowing construction. Such a construction, however, is simple in comparison to the changes that would have been required to uphold the statute in Fielden, supra. Contrary to the dissent's claim, this Court would not be inventing a "purpose" for OCGA §
16-8-60(b): the Legislature's purpose is already contained within the language of the statute and reflects its intent to criminalize the sale and distribution of unauthorized reproductions of recorded commercial speech....
...place of express legislative language to the contrary. See Fielden, supra. Rather, it requires narrowing the scope of the existing statutory language to avoid its unintended impact on constitutionally-protected anonymous speech. By interpreting OCGA §
16-8-60(b) in this manner, the Court is fulfilling its proper role, not usurping the role of the Legislature....
...This role means that we must give a narrowing construction to a statute when possible to save it from constitutional challenge. [Cits.] Clark v. Wade,
273 Ga. 587, 598(IV),
544 S.E.2d 99 (2001). Therefore, because as a matter of reasonable judicial construction I would apply a narrowing construction to OCGA §
16-8-60(b) and reject the dissent's position that such a construction can be accomplished only by substantial legislative revision, I join in judgment only in the majority's affirmance of this appeal. CARLEY, Justice, concurring specially. I concur in the majority's holding that OCGA §
16-8-60(b) is not unconstitutionally vague or over broad. However, as Presiding Justice Hunstein notes, I believe that the majority fails to acknowledge expressly how it arrives at that result. Like her, I find that, although OCGA §
16-8-60(b) is facially over broad, that statute can be construed narrowly so as to survive Briggs' constitutional challenge....
...Nevertheless, I cannot agree with her assertion that this result is somehow inconsistent with my dissent in State v. Fielden,
280 Ga. 444,
629 S.E.2d 252 (2006). To the contrary, my position in that case is entirely consistent with upholding the constitutionality of OCGA
16-8-60(b) in this case....
...tional. When the acknowledged test for determining constitutionality as against a challenge for over broadness is applied in this case, I agree with Presiding Justice Hunstein's observation on p. 3 of her special concurrence that the purpose of OCGA §
16-8-60(b) is so palpable that the majority opinion construes the statutory language accordingly, although without acknowledging that its interpretation constitutes a narrowing of the statute. Achieving this constitutional purpose . . . requires narrowing the scope of the existing statutory language to avoid its unintended impact on constitutionally-protected anonymous speech. By interpreting OCGA §
16-8-60(b) in this manner, the Court is fulfilling its proper role. . . . Thus, the majority correctly affirms the judgment of the trial court. MELTON, Justice, dissenting. OCGA §
16-8-60(b) [1] prohibits a substantial amount of constitutionally-protected speech, including anonymous political speech which has long been acknowledged to play "an important role in the progress of mankind." Talley v....
...1511,
131 L.Ed.2d 426 (1995) ("[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.") As a result, I believe that OCGA §
16-8-60(b) is unconstitutionally overbroad and must be severed....
...Furthermore, "[a] statute that is clear about what it prohibits can nevertheless be unconstitutionally overbroad if it stifles expression or conduct that is otherwise protected by the Constitution." State v. Fielden,
280 Ga. 444, 445,
629 S.E.2d 252 (2006); Johnson v. State,
264 Ga. 590(1),
449 S.E.2d 94 (1994). OCGA §
16-8-60(b)'s unlimited restriction on all recorded anonymous speech violates both of these constitutional standards. OCGA §
16-8-60(b) prohibits the sale, distribution, circulation, or possession for these purposes of any videotape, disc, or other article on which sounds or visual images have been transferred unless the videotape, disc, or other article also bears the actual name of the transferor of the sounds or visual images....
...In Talley, the speech was written, and in this case it is recorded. For purposes of the constitutional analysis, however, this is a distinction without a difference, as both laws attempt to prohibit a substantial amount of protected speech. In application, OCGA §
16-8-60(b), without any stated reason, would prohibit an individual from anonymously distributing recorded videotapes, discs, or the like, on which the individual transferred his or her political views by subjecting the person to criminal prosecution....
...[4] As one of many examples, an amateur film maker concerned about the deforestation of his or her neighborhood could not anonymously distribute a videotape or DVD chronicling this concern to members of his neighborhood and his elected officials. In criminalizing such speech, OCGA §
16-8-60(b) steps far outside its constitutional bounds and "stifles expression or conduct that is otherwise protected by the Constitution." Fielden, supra. Although this Court has the authority to narrowly interpret a statute to avoid constitutional infirmities, there is no way to do so in this case because we would have to substantially revise OCGA §
16-8-60(b), imposing upon it a purpose it unambiguously omits, namely its application only to "pirated" recordings. Although the Legislature chose to clearly and explicitly limit the application of OCGA §
16-8-60(a)(1) and (2) to the copying, sale, distribution, or circulation of recorded sounds or images "without the consent of the person who owns the master [recording]," the Legislature decided to leave this limitation out of OCGA §
16-8-60(b)....
...Under the doctrine of separation of powers, "statutory construction belongs to the courts, legislation to the legislature. We can not add a line to the law." (Citations and punctuation omitted.) Etkind v. Suarez,
271 Ga. 352, 353(1),
519 S.E.2d 210 (1999). To make OCGA §
16-8-60(b) constitutional, we would have to do just that. We would have *299 to add a line to the law limiting it to a purpose the legislature specifically chose not to include within it. Such an act would not just limit OCGA §
16-8-60(b). It would change its substance altogether. Such changes must be made by the Legislature, not this Court. OCGA §
16-8-60(b), therefore, must be severed from the statute....
...I am authorized to state that Chief Justice Sears joins in this dissent. NOTES [1] Given the nature of the entertainment industry, we suspect that very few legitimate artists or producers would actually want anonymity in the entertainment marketplace. [2] See Nimmer, The Law of Copyright, § 1.01. [1] OCGA §
16-8-60(b) provides: "It is unlawful for any person ....
...ecord, 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." [2] I agree with the majority's conclusions that OCGA §
16-8-60(b) is neither vague nor preempted by federal copyright law....
...rcumstances, which does not have printed on the cover, or the face thereof, the name and address of the following: (a) The person who printed, wrote, compiled, or manufactured the same. (b) The person who caused the same to be distributed." [4] OCGA §
16-8-60(c) excepts transfers "[s]olely for the personal use of the person transferring or causing the transfer and without any profit being derived by the person from the transfer." This exception, however, does not reach the nonprofit distribution of political material. [5] Even after OCGA §
16-8-60(b) is severed from the statute, the act of pirating recorded work will remain illegal, as that act is fully covered by OCGA §
16-8-60(a).
CopyCited 3 times | Published | Supreme Court of Georgia | Mar 20, 2017 | 798 S.E.2d 223
MELTON, Presiding Justice.
In this case regarding the interpretation of Georgia’s Criminal Reproduction and Sale of Recorded Material Statute, OCGA §
16-8-60, the United States District Court for the Middle District of Georgia has certified the following question for our consideration:
Whether the exemption to OCGA §
16-8-60, set forth in §
16-8-60 (c) (1), applies such that internet radio services are exempt from application of §
16-8-60?
For the reasons set forth below, we find that the type of Internet radio services being offered by iHeartMedia, Inc. in this case do fall under the exemption set forth in OCGA §
16-8-60 (c) (1).
The underlying facts of this case, as set forth by the District Court, show that Arthur and Barbara Sheridan are the owners of several pre-1972 master sound recordings of certain popular songs, as well as the associated intellect...
...ority, or consent from the Sheridans to stream the recordings, and iHeartMedia has not compensated the Sheridans for the use of their recordings.
On September 29, 2015, the Sheridans filed a complaint against iHeartMedia alleging violations of OCGA §
16-8-60,3 which prohibits the transfer of sound recordings without permission and provides criminal sanctions for violators.4 The Sheridans claim that iHeart-Media needed their consent to transfer their master sound recordings to iHeartRadio listeners, and that iHeartMedia engaged in racketeering activity by making unauthorized transfers. See OCGA §
16-14-1. iHeartMedia moved to dismiss the Sheridans’ complaint under the radio broadcast exemption in OCGA §
16-8-60 (c) (1), which states that OCGA §
16-8-60 does not apply to “any person who transfers or causes to be transferred any such sounds or visual images intended for or in connection with radio or television broadcast transmission or related uses.” This motion prompted the District...
...[and] if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.
(Citations and punctuation omitted.) Deal v. Coleman,
294 Ga. 170, *773173 (1) (a) (751 SE2d 337) (2013). On its face, OCGA §
16-8-60 (c) (1) provides an exemption for both radio broadcast transmissions and related uses. If iHeartMedia’s Internet radio services fall under either of these categories, the prohibitions of OCGA §
16-8-60 do not apply to iHeartRadio.
The services provided by iHeartRadio do qualify, at the least, as a related use to a radio broadcast transmission5 for two main reasons: (1) the user experiences offered by iHeartMedia and terrestrial AM/FM ra...
...cast of sound recordings between terrestrial AM/FM and Internet transmissions of the type offered by iHeartMedia in this case, the latter is a related use of the former. Accordingly, we answer the certified question as follows: The exemption to OCGA §
16-8-60, set forth in OCGA §
16-8-60 (c) (1), applies such that Internet radio services of the type offered by iHeartMedia are exempt from application of OCGA §
16-8-60.
Certified question answered.
All the Justices concur.
Federal copyright law has preempted state laws pertaining to sound recordings published post-1972....
...on of radio broadcast transmissions. We need only conclude that such transmissions do include the traditional broadcast of music by terrestrial AM/FM stations.
The General Assembly did not provide any limitation to definitions of terms within OCGA §
16-8-60 (c) (1)....
