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A bill to be entitled

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An act relating to unauthorized copies of recordings;

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amending s. 540.11, F.S.; requiring a court to order a

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person who engages in the unauthorized sale, resale,

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rental, or transportation of certain recorded articles to

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make restitution to the owner who suffered injury

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resulting from the violation or to the trade association

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representing such owner; requiring that the amount of

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restitution be based on the average wholesale value of

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authorized articles corresponding to the number of

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unauthorized articles involved in the offense and

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investigative costs; revising the list of persons or

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entities that are exempt from the unauthorized sale,

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resale, rental, or transportation of recorded articles;

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providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Subsections (3) and (6) of section 540.11,

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Florida Statutes, are amended to read:

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     540.11  Unauthorized copying of phonograph records, disk,

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wire, tape, film, or other article on which sounds are

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recorded.--

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     (3)(a)  It is unlawful:

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     1.  To sell or offer for sale or resale, advertise, cause

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the sale or resale of, rent, transport or cause to be rented or

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transported, or possess for any of these purposes any article

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with the knowledge, or with reasonable grounds to know, that the

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sounds thereon have been transferred without the consent of the

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owner.

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     2.  To sell or offer for sale or resale, advertise, cause

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the sale or resale of, rent, transport or cause to be rented or

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transported, or possess for any of these purposes any article

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embodying any performance, whether live before an audience or

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transmitted by wire or through the air by radio or television,

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which was recorded without the consent of the performer.

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     3.  Knowingly, for commercial advantage or private financial

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gain to sell or resell, offer for sale or resale, advertise,

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cause the sale or resale of, rent, transport or cause to be

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rented or transported, or possess for such purposes, any

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phonograph record, disk, wire, tape, film, or other article on

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which sounds are recorded, unless the outside cover, box, or

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jacket clearly and conspicuously discloses the actual name and

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address of the manufacturer thereof, and the name of the actual

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performer or group.

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     (b)1.  A person who violates paragraph (a) commits a felony

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of the third degree, punishable as provided in s. 775.082, by a

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fine of up to $250,000, or both if the offense involves at least

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1,000 unauthorized articles embodying sound or at least 65

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unauthorized audiovisual articles during any 180-day period or is

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a second or subsequent conviction under either this subparagraph

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or subparagraph 2. of this subsection.

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     2.  A person who violates paragraph (a) commits a felony of

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the third degree, punishable as provided in s. 775.082, by a fine

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of up to $150,000, or both if the offense involves more than 100

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but less than 1,000 unauthorized articles embodying sound or more

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than 7 but less than 65 unauthorized audiovisual articles during

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any 180-day period.

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     3.  A person who otherwise violates this subsection commits

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a misdemeanor of the first degree, punishable as provided in s.

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775.082, by a fine of up to $25,000, or both.

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     4. The court shall order a person who violates paragraph

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(a) to make restitution to an owner who suffered injury resulting

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from the violation, or to a trade association representing such

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owner, in accordance with s. 775.089. The amount of restitution

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shall be based on the average wholesale value of authorized

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articles corresponding to the number of unauthorized articles

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involved in the offense, unless a greater value can be proven.

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The order shall also include investigative costs relating to the

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offense.

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     (6)  This section does not apply:

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     (a)  To any broadcaster who, in connection with, or as part

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of, a radio, television, or cable broadcast transmission, or for

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the purpose of archival preservation, transfers any such sounds

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recorded on a sound recording.

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     (b)  To any person who transfers such sounds in the home for

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personal use and without compensation for such transfer.

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     (c)  To any not-for-profit educational institution or any

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federal or state governmental entity, if all the following

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conditions exist:

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     1.  The primary purpose of the institution or entity is the

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advancement of the public's knowledge and the dissemination of

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information.

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     2.  Such purpose is clearly set forth in the institution's

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or entity's charter, bylaws, certificate of incorporation, or

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similar document.

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     3.  Prior to the transfer of the sounds, the institution or

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entity has made a good faith effort to identify and locate the

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owner or owners of the articles to be transferred.

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     4.  Despite good faith efforts, the owner or owners have not

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been located.

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     (d) To communication service providers as defined in s.

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202.11(2), commercial mobile service providers, or providers of

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information services, including, but not limited to, Internet

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access service providers and hosting service providers, when

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providing only the transmission, storage, or caching of

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electronic communications or messages of others or providing

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other related telecommunications, commercial mobile radio

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service, or information services used by others in violation of

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this section. This exemption does not apply to providers of

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communication or information services that personally violate

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this section or knowingly facilitate the specific violation of

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this section by others.

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     Section 2.  This act shall take effect July 1, 2008.