(a)
Any person who transports or causes to be transported for monetary or other consideration within this state, any article containing sounds of a live performance with the knowledge that the sounds thereon have been recorded or mastered without the consent of the owner of the sounds of the live performance is guilty of a public offense punishable as provided in subdivision (g) or (h).
(b)
As used in this section and Section 653u:
(1)
“Live performance” means the recitation, rendering, or playing of a series of musical, spoken, or other sounds in any audible sequence thereof.
(2)
“Article” means
the original disc, wire, tape, film, phonograph record, or other recording device used to record or master the sounds of the live performance and any copy or reproduction thereof which duplicates, in whole or in part, the original.
(3)
“Person” means any individual, partnership, partnership member or employee, corporation, association, or corporation or association employee, officer, or director, limited liability company, or limited liability company manager or officer.
(c)
In the absence of a written agreement or operation of law to the contrary, the performer or performers of the sounds of a live performance shall be presumed to own the right to record or master those sounds.
(d)
For purposes of this section, a person who is authorized to maintain custody and control over business records reflecting the consent of
the owner to the recordation or master recording of a live performance shall be a proper witness in any proceeding regarding the issue of consent.
Any witness called pursuant to this section shall be subject to all rules of evidence relating to the competency of a witness to testify and the relevance and admissibility of the testimony offered.
(e)
This section shall neither enlarge nor diminish the rights and remedies of parties to a recording or master recording which they might otherwise possess by law.
(f)
This section shall not apply to persons engaged in radio or television broadcasting or cablecasting who record or fix the sounds of a live performance for, or in connection with, broadcast or cable transmission and related uses in educational television or radio programs, for archival purposes, or for news programs or purposes if the
recordation or master recording is not commercially distributed independent of the broadcast or cablecast by or through the broadcasting or cablecasting entity to subscribers or the general public.
(g)
Any person who has been convicted of a violation of subdivision (a), shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or five years, or by a fine not to exceed five hundred thousand dollars ($500,000), or by both, if the offense involves the transportation or causing to be transported of not less than 1,000 articles described in subdivision (a).
(h)
Any person who has been convicted of any other violation of subdivision (a) not described in subdivision (g) shall be punished by imprisonment in the county jail not to exceed one year, or by a fine not to exceed fifty thousand
dollars ($50,000), or by both that fine and imprisonment. A second or subsequent conviction under subdivision (a) not described in subdivision (g) shall be punished by imprisonment in the county jail not to exceed one year or pursuant to subdivision (h) of Section 1170, or by a fine not to exceed two hundred thousand dollars ($200,000), or by both that fine and imprisonment.
(i)
Every person who offers for sale or resale, or sells or resells, or causes the sale or resale, or rents, or possesses for these purposes, any article described in subdivision (a) with knowledge that the sounds thereon have been so recorded or mastered without the consent of the owner of the sounds of a live performance is guilty of a public offense.
(1)
A violation of subdivision (i) involving not less than 100 of those articles shall be punishable by imprisonment in a county jail not to exceed one year or
by a fine not to exceed twenty thousand dollars ($20,000), or by both that fine and imprisonment. A second or subsequent conviction for the conduct described in this paragraph shall be punishable by imprisonment in the county jail not to exceed one year or pursuant to subdivision (h) of Section 1170, or by a fine not to exceed fifty thousand dollars ($50,000), or by both.
(2)
A person who has been convicted of any violation of this subdivision not described in paragraph (1) shall be punished by imprisonment in the county jail not to exceed six months or by a fine not to exceed ten thousand dollars ($10,000), or by both that fine and imprisonment. A second conviction for the conduct described in this paragraph shall be punishable by imprisonment in the county jail not to exceed one year or by a fine not to exceed twenty thousand dollars ($20,000), or by both that fine and imprisonment. A third or subsequent conviction for the conduct described
in this paragraph shall be punishable by imprisonment in the county jail not to exceed one year or pursuant to subdivision (h) of Section 1170, or by a fine not to exceed fifty thousand dollars ($50,000), or by both that fine and imprisonment.