Amend CSSB 1835 (Senate committee printing) by striking all
below the enacting clause and substituting the following:
SECTION 1. Chapter 641, Business & Commerce Code, is
transferred to Chapter 32, Penal Code, redesignated as Subchapter
E, Chapter 32, Penal Code, and amended to read as follows:
SUBCHAPTER E [CHAPTER 641]. UNAUTHORIZED RECORDINGS
[SUBCHAPTER A. GENERAL PROVISIONS]
Sec. 32.71 [641.001]. DEFINITIONS. In this subchapter
[chapter]:
(1) "Fix" means to embody in a recording or other
tangible medium of expression, by or under the authority of the
author, so that the matter embodied is sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration.
(2) "Live performance" means a recitation, rendering,
or playing of a series, in an audible sequence, of:
(A) images;
(B) musical, spoken, or other sounds; or
(C) a combination of images and sounds.
(3) "Owner" means a person who owns the sounds fixed in
a master phonograph record, master disc, master tape, master film,
or other recording:
(A) on which sound is recorded; and
(B) from which the transferred recorded sounds
are directly or indirectly derived.
(4) "Recording" means a tangible medium on which
sounds, images, or both are recorded or otherwise stored,
including:
(A) an original phonograph record, disc, tape,
audio or video cassette, wire, film, electronic storage device, or
other medium now existing or later developed; or
(B) a copy or reproduction that wholly or partly
duplicates the original.
[SUBCHAPTER B. PROHIBITED PRACTICES; PENALTIES]
Sec. 32.72 [641.051]. UNAUTHORIZED DUPLICATION OF CERTAIN
RECORDINGS. (a) This section applies only to a recording that was
initially fixed before February 15, 1972.
(b) A person commits an offense if the person:
(1) knowingly reproduces for sale or causes to be
transferred any recording with intent to sell the recording or
cause the recording to be sold or use a recording or cause the
recording to be used for commercial advantage or private financial
gain through public performance without the consent of the owner;
(2) with the knowledge that the sounds on a recording
have been reproduced or transferred without the consent of the
owner, transports the recording within this state for commercial
advantage or private financial gain; or
(3) with the knowledge that a recording has been
reproduced or transferred without the consent of the owner:
(A) advertises, offers for sale, sells, or rents
the recording;
(B) causes the sale, resale, or rental of the
recording; or
(C) possesses the recording for a purpose
described by Paragraph (A) or (B).
(c) [An offense under this section is punishable by:
[(1) imprisonment for a term of not more than five
years, a fine not to exceed $250,000, or both, if:
[(A) the offense involves at least 1,000
unauthorized recordings during a 180-day period; or
[(B) the defendant has been previously convicted
under this section;
[(2) imprisonment for a term of not more than two
years, a fine not to exceed $250,000, or both, if the offense
involves more than 100 but fewer than 1,000 unauthorized recordings
during a 180-day period; or
[(3) confinement in the county jail for a term of not
more than one year, a fine not to exceed $25,000, or both, if the
offense is not otherwise punishable under Subdivision (1) or (2).
[(d)] This section does not apply to any fees due to the
American Society of Composers, Authors and Publishers.
Sec. 32.73 [641.052]. UNAUTHORIZED RECORDING OF LIVE
PERFORMANCE. (a) A person commits an offense if the person, with
the knowledge that a live performance has been recorded or fixed
without the consent of the owner:
(1) for commercial advantage or private financial
gain, advertises, offers for sale, sells, rents, or transports,
causes the sale, resale, rental, or transportation of, or possesses
for one or more of these purposes a recording containing sounds of
the live performance; or
(2) with the intent to sell for commercial advantage
or private financial gain, records or fixes the live performance,
or causes the live performance to be recorded or fixed on a
recording.
(b) [An offense under this section is punishable by:
[(1) imprisonment for a term of not more than five
years, a fine not to exceed $250,000, or both, if:
[(A) the offense involves at least 1,000
unauthorized recordings embodying sound or at least 65 unauthorized
audiovisual recordings during a 180-day period; or
[(B) the defendant has been previously convicted
under this section;
[(2) imprisonment for a term of not more than two
years, a fine not to exceed $250,000, or both, if the offense
involves more than 100 but fewer than 1,000 unauthorized recordings
embodying sound or more than seven but fewer than 65 unauthorized
audiovisual recordings during a 180-day period; or
[(3) confinement in the county jail for a term of not
more than one year, a fine not to exceed $25,000, or both, if the
offense is not otherwise punishable under Subdivision (1) or (2).
[(c)] In the absence of a written agreement or law to the
contrary, the performer or performers of a live performance are
presumed to own the rights to record or fix those sounds.
(c) [(d)] For purposes of this section, a person authorized
to maintain custody and control over business records that reflect
whether the owner of a live performance consented to having the live
performance recorded or fixed is a proper witness in a proceeding
regarding the issue of consent. A witness called under this
subsection is subject to the rules of evidence relating to the
competency of a witness to testify and the relevance and
admissibility of the testimony offered.
Sec. 32.74 [641.053]. UNAUTHORIZED OPERATION OF RECORDING
DEVICE IN MOTION PICTURE THEATER. (a) In this section:
(1) "Audiovisual recording function" means the
capability of a device to record or transmit a motion picture or any
part of a motion picture by means of any technology now known or
later developed.
(2) "Motion picture theater" means a movie theater,
screening room, or other place primarily used to exhibit a motion
picture.
(b) A person commits an offense if, without the consent of
the owner of the theater, the person, with the intent to record a
motion picture, knowingly operates the audiovisual recording
function of any device in a motion picture theater while the motion
picture is being exhibited.
(c) [An offense under this section is a Class A misdemeanor,
except that the offense is:
[(1) a state jail felony if the person has been
previously convicted one time of an offense under this section; or
[(2) a felony of the third degree if the person has
been previously convicted two or more times of an offense under this
section.
[(d)] It is a defense to prosecution under this section that
the audiovisual recording function of the device was operated
solely for official law enforcement purposes.
(d) [(e)] 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.
(e) [(f)] A person who reasonably believes that another has
knowingly operated the audiovisual recording function of a device
in a motion picture theater in violation of this section is
privileged to detain that other person in a reasonable manner and
for a reasonable time to allow for the arrival of law enforcement
authorities.
Sec. 32.75 [641.054]. IMPROPER LABELING. [(a)] A person
commits an offense if:
(1) for commercial advantage or private financial
gain, the person knowingly:
(A) advertises, offers for sale, sells, rents, or
transports a recording;
(B) causes the sale, resale, rental, or
transportation of a recording; or
(C) possesses a recording for a purpose described
by Paragraph (A) or (B); and
(2) the outside cover, box, label, or jacket of the
recording does not clearly and conspicuously disclose[:
[(A)] the actual name and address of the
manufacturer[; and
[(B) the name of the performer or group].
[(b) An offense under this section is punishable by:
[(1) imprisonment for a term of not more than five
years, a fine not to exceed $250,000, or both, if:
[(A) the offense involves at least 65
unauthorized recordings during a 180-day period; or
[(B) the defendant has been previously convicted
under this section;
[(2) imprisonment for a term of not more than two
years, a fine not to exceed $250,000, or both, if the offense
involves more than seven but fewer than 65 unauthorized recordings
during a 180-day period; or
[(3) confinement in the county jail for a term of not
more than one year, a fine not to exceed $25,000, or both, if the
offense is not otherwise punishable under Subdivision (1) or (2).]
Sec. 32.76. PENALTIES. (a) Except as provided by
Subsection (b), an offense under this subchapter is:
(1) a Class C misdemeanor if the value of pecuniary
loss to the owner of or lawful producer of the recording is less
than $50;
(2) a Class B misdemeanor if the value of pecuniary
loss to the owner of or lawful producer of the recording is $50 or
more but less than $500;
(3) a Class A misdemeanor if the value of pecuniary
loss to the owner of or lawful producer of the recording is $500 or
more but less than $1,500;
(4) a state jail felony if the value of pecuniary loss
to the owner of or lawful producer of the recording is $1,500 or
more but less than $20,000; or
(5) a felony of the third degree if the value of
pecuniary loss to the owner of or lawful producer of the recording
is $20,000 or more.
(b) The punishment prescribed for an offense that is
punishable under Subsection (a)(1), (2), (3), or (4) is increased
to the next highest category of offense if the defendant has one or
more times been previously convicted of or received a grant of
deferred adjudication community supervision for an offense under
this subchapter.
Sec. 32.77 [641.055]. FORFEITURE. If a person is
convicted of an offense under [a violation of] this subchapter
[chapter], the court in its judgment of conviction shall order the
forfeiture and destruction or other disposition of:
(1) all recordings on which the conviction is based;
and
(2) all devices and equipment used or intended to be
used in the manufacture of the recordings on which the conviction is
based.
Sec. 32.78. RESTITUTION. (a) If a person is convicted of
an offense under this subchapter, the court shall order the person
to make restitution to:
(1) an owner or lawful producer of a master recording
who has suffered pecuniary loss as a result of the offense; or
(2) a trade association that represents an owner or
lawful producer described by Subdivision (1).
(b) The court shall base the amount of restitution on the
value of the recordings involved in the offense, as determined
under Section 32.02.
[Sec. 641.056. PRIVATE RIGHTS AND REMEDIES NOT AFFECTED.
Sections 641.051, 641.052, and 641.054 do not affect the rights and
remedies of a party in private litigation.
[Sec. 641.057. PENALTIES CUMULATIVE. A penalty provided by
this chapter is in addition to any other penalty provided under
other law.]
SECTION 2. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
governed by the law in effect at the time the offense was committed.
For purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 3. This Act takes effect September 1, 2009.