"Criminal Simulation," Copyright and "Criminal Tools"

I’ve done a couple of posts on the crime usually known as possession of burglar’s tools. This post is about a related offense and how it applies, or doesn’t apply, to copyright violations.

As I explained in my first post on the topic, state criminalize the possession of burglar’s tools for two reasons: One is that it lets them stop someone who has burglar’s tools before he or she goes ahead and commits burglary; this, as I noted in that first post, means the possession of burglar’s tools crime is a kind of inchoate (incomplete) crime.

The other reason states criminalize the possession of burglar’s tools is that it gives a prosecutor an additional charge to bring against someone who has actually committed burglary. (Courts have held that burglary and possession of burglar’s tools are two distinct crimes, since one can commit burglary without possessing burglar’s tools and can possess burglar’s tools without having committed burglary. See State v. Reid, 1997 WL 722786 (Tennessee Court of Criminal Appeals 1997).)

And that brings us to State v. Chappell, 2009 WL 3217907 (Ohio Court of Appeals 2009).

Chappell was indicted in a four-count indictment on two counts of criminal simulation of music and movies in violation of [Ohio Revised Code § 2913.32], one count of receiving stolen property (a laptop computer) in violation of [Ohio Revised Code § 2913.51), and one count of possessing criminal tools (i.e., money, an automobile, hard drives, a laptop computer, and packaging material) in violation of [Ohio Revised Code § 2923.24The charges stemmed from allegedly bootlegged DVDs and CDs found in Chappell's car during the execution of a search warrant.

State v. Chappell, supra.

Chappell moved to dismiss the receiving stolen property and criminal simulation charges, and the trial court granted both motions. State v. Chappell, supra. I have no idea why the court dismissed the receiving stolen property charge, since the opinion doesn’t say; my guess is that the evidence didn’t prove Chappell knew the laptop was stolen when he possessed. It.

The opinion doesn’t tell me why the trial court dismissed the criminal simulation charges, but I have a pretty good idea why it did so. The criminal simulation was brought under this Ohio statute:

(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:

(1) Make or alter any object so that it appears to have value because of antiquity, rarity, curiosity, source, or authorship, which it does not in fact possess;

(2) Practice deception in making, retouching, editing, or reproducing any photograph, movie film, video tape, phonograph record, or recording tape;

(3) Falsely or fraudulently make, simulate, forge, alter, or counterfeit any wrapper, label, stamp, cork, or cap prescribed by the liquor control commission. . . .

(4) Utter, or possess with purpose to utter, any object that the person knows to have been simulated as provided in division (A)(1), (2), or (3) of this section.

(B) Whoever violates this section is guilty of criminal simulation. . . .

Ohio Revised Code § 2913.32.

I hadn’t heard of criminal simulation before. According to a law review article, many states have adopted criminal simulation statutes as a way to penalize the falsification or fabrication of works of art and antiquities. Lilli Hsieh, Jennifer McCarthy & Elizabeth Monkus, Intellectual Property Crimes, 35 American Criminal Law Review 899 (1998). The article says the criminal simulation offense is essentially intended to extent the concept of forgery to items other than “written documents and checks.” Intellectual Property Crimes, supra. Criminal simulation, then, is essentially a forgery crime.

So why did the trial court dismiss the criminal simulation charges against Chappell? I think it was because the court found that the charges were pre-empted by federal law.

Section 301(a) of Title 17 of the U.S. code says that

all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

Section 301(a) and related provisions of federal law completely pre-empt state law when it comes to civil copyright claims. As Wikipedia explains, this means there is no state civil cause of action for copyright infringement. As Wikipedia notes, Congress took this step in 1976 because it believed “national uniformity” is essential in the area of copyright law. See Ritchie v. Williams, 395 F.3d 283 (U.S. Court of Appeals for the Sixth Circuit 2005). In deciding whether a civil state cause of action is pre-empted by federal law, a federal court compares the elements of the state cause of action and a federal copyright claim; if the elements are indistinguishable, the state cause of action is pre-empted. See Ritchie v. Williams, supra.

Pre-emption isn’t limited to civil causes of action. As another law review article explains, “[s]tate criminal copyright laws are . . . pre-empted by federal law if the conduct would also be considered criminal infringement under the Copyright Felony Act.” Joseph W. Cormier, Richard Kozell & Jessica L. McCurdy, Intellectual Property Crimes, 46 American Criminal Law Review 761 (2009). In Crow v. Wainwright, 720 F.2d 1224 (U.S. Court of Appeals for the Eleventh Circuit 1983), a federal court of appeals held that federal copyright law pre-empted Crow’s state criminal conviction for dealing in stolen property. The charges against Crow were based on his selling q bootleg eight-track tape (of Tammy Wynette). Crow v. Wainwright, supra. CBS held the copyright on the bootleg tape; Crow argued that “because the only `stolen property’ involved in the case was the copyright of CBS (and not the physical tape itself), the Copyright Act precludes Florida from prosecuting him and renders his conviction void.” Crow v. Wainwright, supra. The U.S. Court of Appeals for the Eleventh Circuit agreed, which meant the conviction could not stand.

That brings us back to Chappell: I think the trial court dismissed the criminal simulation counts because it found they were pre-empted by federal copyright law. It is logical to assume that committing “criminal simulation of music and movies” is indistinguishable from copyright infringement. “Criminal simulation of music and movies” must involve making copies of songs and movies; and as Wikipedia explains, copyright infringement consists of copying a copyright-protected work when doing so is not authorized by one of the defenses or limitations to copyright infringement.

My theory that the trial court relied on pre-emption in dismissing the criminal simulation counts is also supported by what happened with the possession of criminal tools count. Chappell moved to dismiss the possession of criminal tools count but the trial court denied that motion. Chappell filed a motion to compel a response to his

motion for a bill of particulars, in which he had asked the State to identify . . . his alleged criminal purpose in using the alleged criminal tools. In its supplemental bill of particulars, the State asserted that it intended to introduce evidence at trial that Chappell possessed the criminal tools with the intent to violate federal copyright infringement law.

State v. Chappell, supra. (A motion for a bill of particulars is the way a defendant asks the prosecution to give him more information about the facts it will rely on to prove him guilty on one or more charges.)

The trial court then granted Chappell’s motion to dismiss the possession of criminal tools charge, holding that “the intent to use an item criminally must arise from an intended violation of Ohio law and that `the State is not free to use the law of any jurisdiction or federal law in order to support its claim’”. State v. Chappell, supra. The prosecution appealed the dismissal of the possession of criminal tools charge, the Ohio Court of Appeals held that it was correctly dismissed:

Ohio . . . has no common law offenses. . . . `[N]o conduct constitutes a criminal offense . . . unless it is defined as an offense in the Revised Code.’ [Ohio Revised Code § 2901.03(A)]. `An offense is defined when one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or failure to meet such duty.’ [Ohio Revised Code § 2901.03(B)]. . . .

Under these sections, . . . prosecution under Ohio law must emanate from violations of offenses defined in the Revised Code. . . . Violating federal copyright law is not defined as an offense in the Revised Code nor does the Code provide any penalty for it. Thus, even assuming Chappell possessed tools and intended through their use to violate federal copyright law, such intent is not a crime that can be prosecuted . . . under the Ohio Revised Code, as there would have been no intended violation of state law.

State v. Chappell, supra.

It seems to me that Chappell’s argument is at least implicitly a pre-emption argument. His attorney got the prosecutor to admit that he was going to rely on federal copyright law in proving the possession of criminal tools charge. Possessing criminal tools for the purpose of committing copyright infringement doesn’t seem to be a crime under federal law, so the offense the prosecutor sought to convict Chappell of probably wasn’t actually pre-empted by federal law. That is, it probably didn’t constitute a copyright infringement crime, as such . . . for the same reason courts have held that the possession of burglar’s tools crime isn’t the same crime as burglary. I can possess tools with the intent to infringe someone’s copyright without infringing a copyright, and I can probably infringe a copyright without possessing copyright infringement tools.

The problem here is that you can’t commit the crime of possessing criminal tools unless you possessed those tools with the intent to commit a crime in that jurisdiction. Since copyright infringement is not, and cannot be, a crime under Ohio law, Chappell simply possessed . . . items . . . that could not be used to commit a crime (at least not the crime of possessing criminal tools) in Ohio. Even if he believed he was possessing criminal tools, his belief isn’t enough to transform what isn’t a crime under the law into a crime.