Opposition — Taxe v. United States

No. 76-497 MICHAEL RODAK, JR. CLape

Iu the Supreme Court of the Huited States

OctToser TERM, 1976

RICHARD TAXE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RoserT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. Felt,

HENRY WALKER,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

~-

In the Supreme Court of the Hnited States

OcTOBER TERM, 1976

No. 76-497

RICHARD TAXE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

i

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 540 F. 2d 961.

JURISDICTION

The judgment of the court of appeals was entered on June

8, 1976. A petition for rehearing aad with a suggestion for re-

hearing en banc was denied on August 23, 1976. The peti-

tion for a writ of certiorari was filed on October 8, 1976,

and is therefore out of time under Rule 22(2) of Rules of

this Court. The jurisdiction of this Court is invoked under

1254(1).

QUESTIONS PRESENTED

1. Whether the Sound Recording Amendment of

1971, 17 U.S.C. (Supp. V) | et seq., is unconstitutionally

vague on its face or as applied in this case.

(1)

2

2. Whether the prosecutor's closing argument denied

petitioner due process.

3. Whether the district court erred in not holding a

hearing on petitioner's challenge to the affidavits under-

lying four search warrants.

STATEMENT

Following a jury trial in the United States District

Court for the Central District of California, petitioner

and three others were convicted of infringing copyrighted

sound recordings, willfully and for profit, in violation of

17 U.S.C. (Supp. V) I(f), 101(e) and 104, and of conspiring

to do so, in violation of 18 U.S.C. 371. In addition,

petitioner was convicted of mail fraud, in violation of 18

U.S.C. 1341. He was sentenced to four years’ imprisonment

and fines totalling $26,000, and ordered to pay the costs

of his prosecution. The court of appeals affirmed the con-

victions but vacated and remanded that portion of the

judgment imposing costs on petitioner (Pet. App. A).

Petitioner stipulated at trial that, at his direction,

record albums and tapes manufactured by major record

companies were purchased on the open market and

copied onto tapes that were then sold to the general

public (Pet. 6). In the copying process slight changes were

made in each recording: the speed was increased or de-

creased, echo effects were produced, and some sounds were

eliminated or others were added by use of sophisticated

electronic equipment. Petitioner and his co-defendants

then promoted the sale of these altered tapes as authen-

tic works, describing them as “Today’s hits as done by

your favorite artists. Custom simulated by Sound 8 singers

and musicians” (ibid.; Pet. App. A2).

ARGUMENT

The Sound Recording Amendment to the Copy-

right Act, 17 U.S.C. (Supp. V) | ef seq., provides copy-

3

right protection for sound recordings that are “fixed”

after February 15, 1972. The owner of a copyright in a

sound recording is granted the exclusive right to “dupli-

cate” the recording, as by records or tapes that “recap-

ture[ ] the actual sounds fixed in the recording” (17

U.S.C. (Supp. V) |(f)). That right, however, does not extend

“to the making or duplication of another sound record-

ing that is an independent fixation of other sounds, even

though such sounds imitate or simulate those in the

copyrighted sound recording” (ibid.; emphasis added).

The Amendment further provides that the “unauthor-

ized manufacture, use, or sale” of records and tapes that

are “copies” of copyrighted musical works “shall consti-

tute an infringement of the copyrighted work” sub-

jecting the infringer to civil liability and, “in a case of

willful infringement for profit,” to criminal prosecution

(17 U.S.C. (Supp. V) 101(e)). Willful infringement for

profit carries with it a penalty (in the case of a first of-

fender) of up to one year’s imprisonment and a fine of

not more than $25,000 (17 U.S.C. (Supp. V) 104(b)).

1. Petitioner contends (Pet. 9-40) that the law is

unconstitutionally vague on its face.

Since First Amendment freedoms are not involved in this

case, petitioner’s challenge “ ‘must be examined in the light

of the facts of the case at hand’ ”—that is, as the statute has

been applied to his conduct—unless the statute can be said

to have “proscribed no comprehensible course of conduct at

all.” United States v. Powell, 423 U.S. 87, 92 (quoting

United States v. Mazurie, 419 U.S. 544, 550). Both courts

below correctly determined that the statute forbids a

reasonably ascertainable course of conduct.

First, a “sound recording”—the work subject to copy-

right protection—is defined as a work “that result[s] from

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the fixation of a series of musical, spoken, or other sounds”

(17 U.S.C. (Supp. V) 26). The meaning of “fixation” in the

context of the statute imports the capture and preservation

(on a device such as a record or a tape) of sounds for further

perception or communication (see ibid.). The copyright

owner's exclusive right to “duplicate” (17 U.S.C. (Supp. V)

I(f)) such sound recordings is not (contrary to petitioner's

assertion (Pet. 19-20)) unconstitutionally vague simply

because the term “duplicate” is not further defined in the

statute. Read in context and given its commonsense

meaning, the copyright owner's exclusive right to

“duplicate” his sound recording conveys upon him the sole

power lawfully to reproduce his work, much as the

copyright owner of a literary work has the exclusive right to

duplicate the subject of his copyright.

Furthermore, the exclusive right of duplication con-

ferred upon the copyright owner—and therefore forbidden

to all others during the period of the copyright—derives

additional meaning from the limits the statute sets on that

right. Thus, individuals other than the copyright owner may

with impugnity “mak[e] or duplicat{e]* * * another sound

recording that is an independent fixation of other sounds,

even though such sounds imitate or simulate those in the

copyrighted sound recording” (17 U.S.C. (Supp. V) I(f)). In

simple terms, the statute permits anyone, by efforts that are

independent of the copyright owner’s, to produce and

reproduce “other sounds” than those that appear in the

copyrighted work—even if those “other sounds” are

intended to be and indeed are quite similar to the ones

subject to the statute’s protection.

A record or a tape that is not an “independent fixation

of other sounds,” however, is a “cop[y] of the copyrighted

musical work.” Whether the sounds on a particular record

or tape constitute a copy of a copyrighted work, or an

5

independent fixation of other sounds, typically poses

issues of similarity for the trier of fact to resolve. See

Ideal Toy Corp. v. Fab-Lu Ltd. (Inc.), 360 F.2d 1021 (C.A.

2); First American Artificial Flowers, Inc. v. Joseph

Markovits, Inc., 342 F. Supp. 178 (S.D.N.Y.). If the record

or tape is found to be a copy, its unauthorized manufac-

ture, use, or sale will constitute infringement (17 U.S.C.

(Supp. V) 101(e)).

In short, the statute meaningfully proscribes ascer-

tainable conduct. It cannot be said to “ ‘leave[] open * * *

the widest conceivable inquiry, the scope of which no one

can foresee and the result of which no one can foreshadow

or adequately guard against’ ” (United States v. Powell,

supra, 423 U.S. at 92, quoting from United States v. L.

Cohen Grocery Co., 255 U.S. 81, 89). Those who sincerely

desire to do so may without undue difficulty conform their

conduct to the statute’s demands. While there may be cases

at the margin where the reach of the statute’s prohibition

against infringement may cause doubt, that is not reason

enough to overcome the presumption of validity that

attaches to Acts of Congress (United States v. National

Dairy Products Corp., 372 U.S. 29, 32), for “the law is full of

instances were a man’s fate depends on his estimating

rightly” (Nash v. United States, 229 U.S. 373, 377).

2. Since the Sound Recording Amendment is not

unconstitutionally vague on its face, the question be-

comes whether, as petitioner also contends (Pet. 40-54),

that statute is unconstitutionally vague as applied to this

case. We submit that it is not. Petitioner was on notice

that the copying and unauthorized use of another’s copy-

righted work is prohibited. He took the risk, when he re-

recorded copyrighted works in their entirety while

making only insignificant changes in them, that a jury

might find that he had copied the originals within the

6

meaning of the statute. That the jury so found is hardly

Surprising, given that the success of petitioner's

marketing of the “pirated” recordings was directly

dependent on the public's acceptance ‘of his advertise-

ment of “[t]oday’s hits as done by your favorite

artists.”

Petitioner argues (Pet. 44-45) that the statute is un-

constitutionally vague as applied to him for an additional

reason. He contends that, since the Registrar of Copy-

rights permits an entire record album to carry a single

copyright notice, notwithstanding that some of the bands

on that record may contain sound recordings that were

fixed prior to the statute’s effective date and thus not

copyrighted, an individual in petitioner’s position is un-

able to tell from the album alone which sound recordings

on an album are protected and which are not.

Conspicuously absent from petitioner’s argument is

any claim that he has been convicted of infringing any

noncopyrighted sound recordings.' Indeed, petitioner’s

argument amounts to the unpersuasive assertion that,

since the Registrar of Copyrights has erroneously afforded

copyright protection to some sound recordings not en-

titled to that protection under the statute, it violates

due process to convict petitioner of infringing sound

recordings that are entitled to and have that protection.

In sum, even assuming that the practice allowed by

the Registrar has the effect in some cases of seeming to

‘The government initially charged petitioner with infringing a

number of entire albums. When the district court ruled that there could

be no infringement of particular “bands” containing sound recordings

“fixed” prior to the effective date of the statute, the government limited

the infringement charges to individual “bands” that were the subject of

valid copyrights (Pet. App. 5). Thus petitioner could not have been

found guilty of infringing noncopyrighted works.

aad

5

grant protection to works not copyrightable,? that can-

not make the application of the statute’s prohibition in

cases where the infringed works are lawfully copyrighted

unconstitutional on vagueness grounds.

3. Petitioner next contends (Pet. 55-93) that improper

remarks by the prosecutor during closing argument de-

prived him of a fair trial. The court of appeals gave careful

attention to this claim (Pet. App. 7-10). Although it

concluded that several of the prosecutor’s remarks were

“unprofessional,” “troublesome,” “{unJreasonable,” and

constituted “misconduct,” it also viewed other of the

challenged remarks as “permissible,” “supported by

evidence,” and constituting “fair comment” (Pet. App. 8-

10). It held that, on balance and given the district court’s

curative instructions, any error caused by the prosecutor's

closing argument was not sufficiently prejudicial to warrant

reversal.

The district court was in the best position to gauge the

propriety and impact of the prosecutor’s argument on the

fairness of the trial. The court of appeals closely scrutinized

the crgument in light of “the facts as a whole” (Pet. App. 9).

?As the court of appeals observed (Pet. App. 4), the statute itself

appears to contemplate the practice allowed by the Registrar in

providing that “[t]he copyright provided by this title shall protect all the

copyrightable component parts of the work copyrighted” (17 U.S.C. 3).

Furthermore, as the court also noted (Pet. App. 4-5), anyone wishing

to determine whether particular “bands” of a copyrighted album are in

fact not subject to the statute’s protection may do so by obtaining (fora

fee) a copy of the copyright certificate from the Registrar (17 U.S.C.

215). Since the copyright notice on the album gives notice that some,

even if not all, of the bands are protected, and since it is relatively simple

to determine which bands are or are not protected, it cannot be said

that the Registrar's practice makes compliance with the law

unconstitutionally difficult.

8

Those courts were satisfied that due process was not denied,

and further review by this Court is not necessary.*

4. Petitioner contends (Pet. 94-103) that the district

court erred in refusing to hold a hearing on his challenge

to the accuracy of the affidavits underlying four search

warrants, pursuant to which many of petitioner's infring-

ing tapes were seized. Petitioner argues, as he did in the

district court, that the FBI agent who made the aver-

ments in the affidavits wrongfully omitted to state that

he and other agents had previously been guided (by peti-

tioner himself) about the premises described in the af-

fidavit and had found no “pirated” tapes, thereby making

the averment that such tapes would be found on those

premises untruthful.

The court of appeals correctly ruled (Pet. App. 7) that

these claims are insubstantial. The omission of any men-

tion of the tour of the premises given by petitioner was

immaterial to the question of probable cause. It does not

follow, simply because on a tour guided by petitioner

himself the agents did not see any “pirated” tapes, either

that such tapes were not in fact on the premises (as in-

deed they turned out to be) or that the agent’s statement

of his belief that they were present (a belief that was

amply confirmed) constituted a deliberate falsehood

intending to deceive the magistrate into authorizing

a search on less than probable cause. As the court of ap-

peals ruled (Pet. App. 7) “{t}he recording contains no

‘There is no need to hold this case pending the decision in Darden v.

Florida, No. 76-5382. certiorari granted November |. 1976. In that case

a state prosecutor in summation characterized the defendant as an

animal who should be kept on a leash (Pet. App. B, p. 750) and

repeatedly expressed his wish that the defendant had been killed or

mutilated by one of the victims of the crime for which the defendant was

on trial. Taken even in their worst light, the comments by the federal

prosecutor in the present case are benign in comparison.

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substantial showing of falsity.”4 Petitioner suggests no

persuasive reason for further review of this conclusion,

and accordingly there is no need in this case to consider

what remedy might be appropriate where the affidavit

underlying a search warrant does indeed contain a mis-

statement or a materia! omission.°

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

RoBeERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

HENRY WALKER,

Attorneys.

DECEMBER 1976.

4In an affidavit filed by the agent in connection with the govern-

ment’s Opposition to petitioner's motion to suppress, the agent

explained that during the tour of the premises he was not shown the

offices, and that he did see large tape reels that he believed to be copies of

masters used to produce the illegal tapes, and unlabeled tape car-

tridges that he believed to be illegal tapes. See the government's

brief on appeal, pp. 81-82. Furthermore, the tour did not include a

visit to a secret room on the premises, located behind a false book-

shelf. See id. at 24, 39-40, 83.

‘The courts of appeals have not adopted a uniform approach to

the problem of misstatements in search warrant affidavits, as we

discuss in our Brief in Oppositien in Lee v. United States, No. 75-

6969, certiorari denied October 18, 1976, a copy of which we are send-

ing to petitioner's counsel. The different approaches of the several

courts of appeals are irrelevant here, where the affidavit did not con-

tain any material omission or any false statement.

DOJ-1976-12