It wasn't illegal, but you're guilty anyway!


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ebd10
August 24, 2006, 07:43 PM
http://unionleader.com/article.aspx?headline=Police+property:+It’s+finders+keepers+in+NH&articleId=c2807a58-75ed-4972-8ab9-caec6bbbb979

Police property: It’s finders keepers in NH

19 hours, 31 minutes ago

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen’s CDs. In the state Supreme Court’s Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.

Dissenting, Justice Linda Dalianis wrote, perceptively, that “the majority does not explain how statutes prohibiting the production, publication, or sale of certain works render possession of such works unlawful.”

Further, Dalianis concluded that “the state’s failure to establish in any way that the seized property constitutes contraband” made it impossible to justify keeping Cohen’s property.

Indeed, the majority’s reasoning is chilling. The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity.

It should go without saying that speculation by a few judges that a crime might have been committed is a frightening basis for taking someone’s property.

Earlier this year, Nashua police confiscated video recordings of two officers being rude to a citizen at his own home. Though police dropped all charges against Michael Gannon and admitted they could not prove the recordings were illegal, they still kept the tapes.

If someone is found with cocaine or any other item clearly illegal to possess, confiscation is easily justified. But the illegality of these items was never proven, and mere possession was not itself illegal.

If the government can seize and keep a citizen’s property by simply asserting that it is contraband, even when the assertion is unsupported by the facts, then we have entered into dangerous territory.

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Zedicus
August 24, 2006, 08:37 PM
Whiskey Tango Foxtrot?:scrutiny:

Theft under Color of Law Plain and Simple.:barf:

Devonai
August 24, 2006, 08:50 PM
Indeed, the majority’s reasoning is chilling. The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity.

And I might take my AR-15 to the mall tomorrow and raise a real big ruckus. :rolleyes:

Sindawe
August 24, 2006, 08:51 PM
Cash seized from travellers w/o the travellers being charged. :scrutiny:

Half hearted tokens to defend our borders from invasion. :scrutiny:

Inventory seized and kept because a crime "might" have been commited. :scrutiny:

<shedding clothes and grabbing deer rifle > If anybody needs me, I'll be up on the roof....

gezzer
August 24, 2006, 09:02 PM
I hope this goes to the SCOTUS. Some of our supreme court NEED TO BE REMOVED, NH Citizens WORK on it!!!!!!!!!!

Coronach
August 24, 2006, 09:15 PM
Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.Dissenting, Justice Linda Dalianis wrote, perceptively...Indeed, the majority’s reasoning is chilling.
It should go without saying......we have entered into dangerous territory.Essentially, this is an editorial. I'd like to hear an unbiased exposition of the facts before I make up my mind as to whether or not outrage is justified. I'm inclined to agree, but I'm always wary when you get one side's argument and one side only.

Mike

Devonai
August 24, 2006, 09:33 PM
Yes, it's an editorial, but I'd like to hear what my congressman has to say about it anyway. Here's a copy of the e-mail I sent him.

"In today's Union Leader, there was a editorial on the New Hampshire state supreme court's ruling on the case of Michael Cohen, owner of Pitchfork Records in Concord. According to the editorial, the court ruled that police are justified in keeping and destroying Mr. Cohen's property (500 music CDs), which was confiscated after charges were filed, even though six of those charges were dropped and the seventh defeated in a lower court. The justification that the court used was that the CDs could be used to commit a crime, and therefore should be destroyed.

If the possession of the CDs was legal, they should be returned to Mr. Cohen. The possibility of being used in a crime is irrelevant and implying that any legally procured and possessed item is capable of being used in a crime makes it worthy of confiscation and destruction is deeply troubling to me.

As a responsible firearms owner, I am worried about the far-reaching implications of such a ruling. If the mere possession of a legal item is sufficient justification for the confiscation of that item based on how easily a crime could be committed with it, then what is to prevent authorities from confiscating my firearms if they should end up in the custody of the authorities? Certainly any firearm could be used to commit a crime regardless of the intent of the owner.

The court could not prove that Mr. Cohen had done anything wrong, but the supreme court ruled that his legal property should be destroyed based on speculative prognostication. Isn't that the same thing as "guilty until proven innocent," taken to its most absurd extreme?"

Sawdust
August 25, 2006, 10:29 AM
If that editorial is accurate, then...well, I am truly speechless.

I *really* fear for the future of this country.

Sawdust

dfaugh
August 25, 2006, 11:19 AM
Does anyone have a link, or more info on the original charges...I'm real curious about what made the CDs "illegal" in the first place. Copyright violations?

Henry Bowman
August 25, 2006, 12:03 PM
Here is a link to the opinion of the court. http://caselaw.lp.findlaw.com/data2/newhampshirestatecases/0608/cohen094.pdf Read it and decide for yourself.

rbernie
August 25, 2006, 12:31 PM
My reading says of it says that, while Cohen couldn't be convicted of bootlegging CD's, the CD's were still bootleg and therefore still contraband. As contraband, they cannot be returned.

We begin by examining whether the compact discs at issue could be considered contraband per se. RSA 352-A:2, II(b) is not the only statute that governs the illegal production and distribution of compact discs. To the contrary, the legislature has made it a misdemeanor to produce or publish, without permission of the author, any uncopyrighted literary, dramatic or musical composition, as well as many other works. RSA 352:1, :2 (1995). Similarly, Congress has made it a felony to willfully infringe copyrights either of works having a value of more than $1,000, or for purposes of commercial advantage or private financial gain. 17 U.S.C. § 506(a) (2000); 18 U.S.C.
§ 2319 (2000 & Supp. III 2003). As the creation of compact discs in violation of copyright laws is illegal under both State and federal statutes, we conclude that such discs are per se contraband, and thus contraband for the purposes of RSA 595-A:6.

Accordingly, even if Cohen himself did not produce these compact discs, whoever did so likely committed several hundred State misdemeanors, or various federal felonies. See RSA 352:1, :2; 17 U.S.C. § 506(a); 18 U.S.C.
§ 2319. Thus, Cohen’s argument that “no crime was committed by anybody” is incorrect, assuming that the compact discs at issue were in fact created or transferred in violation of these State or federal laws. The discs themselves may be the instrumentalities of the commission of a crime — the means by which another’s protected work was illegally copied — and, accordingly, may be derivative contraband.

Because we determine that illegally produced compact discs may be disposed of as contraband, we need not determine whether the public interest requires the same result. Cf. id. at 386; RSA 595-A:6.
The only remaining issue, then, is whether Cohen’s compact discs were in fact produced in violation of State or federal law. Cohen conceded below, and does again on appeal, that the compact discs were counterfeit. The trial court also made a specific finding to this effect. We read these concessions and the trial court’s finding as a determination that the compact discs violated either State or federal statutes regarding copyrights. Accordingly, the compact discs are contraband, and the trial court was within its discretion to deny Cohen’s motion for return of property.

#shooter
August 25, 2006, 12:40 PM
+1 gezzer

That is total BS. If the standard is potential criminal use, that could include homes, vehicles, guns, knives, and just about anything else. I do hope this goes to the SCOTUS and they rules justly, then again they did rule that it is ok to take private property and give it to another private entity for the public good.

rbernie
August 25, 2006, 12:45 PM
Maybe I'm being simple-minded, but to me all this said was that not being convicted of STEALING the stolen material ddidn't obviate the fact that the material was stolen and therefore subject to seizure.

Is that not a standard kind of yardstick?

Art Eatman
August 25, 2006, 12:49 PM
How are counterfeit CDs different from counterfeit money? If something was illegally made, how is possession legal?

Art

ceetee
August 25, 2006, 01:07 PM
I like to make of copy of my recordings, and keep the original safe from harm; if my copy ever gets dinged up, I don't feel bad. I just make a new copy. If I copy one of my CD's, for my own use, am I a counterfeiter? Am I a bootlegger?

No, because there was no intent to profit off the sale or production of the copy. So the yardstick has always been intent: did the bootlegger intend to sell the copies?

Since Napster, the yardstick moved. Now, the actual intent to infringe on the copyright by selling bootleg copies has been made unimportant. It seems tha mere act of making a copy is illegal.

Henry Bowman
August 25, 2006, 01:22 PM
It seems tha mere act of making a copy is illegal.That has always been the law, with a few exceptions.

Possessing counterfeit CDs is not illegal, at least not criminal (unless it is part of the evidence of counterfeitting acts). The problem in this case was they appeared to say that it was derivitive contraband because it could be illegaly used or sold. Here, they had the opportunity to prove a crime and failed.

ArmedBear
August 25, 2006, 01:25 PM
Possessing counterfeit CDs is not illegal, at least not criminal (unless it is part of the evidence of counterfeitting. The problem in this case was they appeared to say that it was derivitive contraband because it could be illegaly used or sold. Here, they had the opportunity to prove a crime and failed.

Exactly.

That is the problem.

It goes to due process, innocent until proven guilty, etc.

Seems that, if it were really that important, they should watch the guy and see if he sold them. If so, they can bust him as well as, perhaps, a distribution network. If not, well, the CD's aren't illegal to possess.

rbernie
August 25, 2006, 01:26 PM
The Fair Use doctrine still largely applies, regardless of what RIAA wants everyone to believe. I can make archival recordings of music for which I have purchased a license-to-use; I just can't sell them or broadcast from them in any fashion that renders profit.

In this case, Cohen was clearly and admittedly intending to sell them for profit. That would seem to be the sticking point. Had Cohen been able to establish these CD' as 'Fair Use' copies, then the court would (in my opinion) had no legal standing to consider them as contraband. But since he told the world that he was going to sell them, things got goofy in a hurry.

Henry Bowman
August 25, 2006, 01:32 PM
Also, there are things that are "illegal," but not criminal. It is a civil matter between the copyright owner and this guy.

This guy is slimy. I'm concerned about the doctrine being extended to other areas. For example, under the reasoning of this court, if I'm charged with drug dealing and $10,000 in cash is seized (they found no drugs), then even though they can't convict me of a crime, the cash might be evidence of some other crime, so they won't return it. This happen every day. Here in America. Same could be applied to large amounts of ammo, etc. After all, you may have stolen it.

cordex
August 25, 2006, 01:37 PM
Same could be applied to large amounts of ammo, etc. After all, you may have stolen it.
Or maybe you made it yourself for sale and illegally infringed on the Winchester trademark for the boxes and headstamps.

TheArchDuke
August 25, 2006, 01:46 PM
After reading the supreme court decision, it seems that Cohen is not the counterfeiter but admits that the CD's ARE counterfeit. Cohen even admits that. So what's the problem? They said that they took the CD's because they were illegal copies, NOT because there was a potential to commit a crime with them.

The only person who suggested that is the writer of the editorial. Read carefully.

Devonai
August 25, 2006, 02:08 PM
I guess I'll wait and see if my congressman is up on the case.

ArmedBear
August 25, 2006, 02:30 PM
It is possible, BTW, that this was a narrow decision, and won't impact much more than this case.

If he admitted that the CD's were counterfeit, it's not exactly a far-reaching decision to refuse to return them.

TX1911fan
August 25, 2006, 02:52 PM
I was mad at first, but the language of the court cleared it up. This is no different than if I buy a stolen car. If I did not know the car was stolen, and if the state cannot prove I knew the car was stolen, then I did not commit a crime. However, just because I did not commit a crime does not mean that I get to keep the stolen car. It goes away.

Take counterfeit money. If I got to a store, pay with a $100 bill and get a counterfeit $20 as change, and then get caught with it, if the Feds cannot prove I made it, or knew it was fake, then I cannot be convicted of counterfeiting or passing counterfeit money. Again, that doesn't mean I get to keep the $20.

Here, the guy admitted that the CDs were illegal copies. His point was that he didn't make them, so he can't be convicted. The state didn't prove its case, but that doesn't mean that the illegal copies get returned to the guy, even if he paid for them. They are still illegal copies, no different than illegal copies of money.

As to whether it may have been used in a crime, that is not the standard the court is applying. The defendant acknowledged they were illegal copies. Using your ammo example, if you said to the court "I know the ammo is illegally branded, that Winchester never gave permission for its trademark to be applied to that ammo", just like this guy admitted that the copyright holder's rights were violated, then even though YOU did not infringe the trademark, someone did, so you don't get the stuff back. Similarly, if I go to Hong Kong and bring back a bunch of fake Rolex watches, just because I didn't know they were fake, or because I was not the one who made them, doesn't mean that I get to keep them. They are still fake, and hence contraband.

rbernie
August 25, 2006, 02:52 PM
If he admitted that the CD's were counterfeit, it's not exactly a far-reaching decision to refuse to return them.Best I can tell, he didn't have much choice but to cop to the fact that they were counterfeit, since they were demonstrably so and he was publicly advertising them for sale (no 'Fair Use' defense there). His only possible defense was to essentially say, "But I'm not the one who copied them, so don't throw me in the hoosegow. There's no state law against SELLING bootleg recordings, just against making them."

That may have worked to keep him out of jail, but it then makes it bloody difficult to go back to the po-leece and ask for the CD's back. :rolleyes:

ArmedBear
August 25, 2006, 03:25 PM
That may have worked to keep him out of jail, but it then makes it bloody difficult to go back to the po-leece and ask for the CD's back.

True.

While I do think there are a lot of problems with current siezure decisions, I can't see how this particular one could have been decided differently, or how it will have far-reaching negative impact, now that I've considered it more.

Erebus
August 25, 2006, 04:25 PM
Or maybe you made it yourself for sale and illegally infringed on the Winchester trademark for the boxes and headstamps.They would have to demonstrate that it was not made by Winchester before this could go anywhere. If you claim it's true Winchester factory ammunition and packaging they have the burden of proof that it is not in fact a Winchester product. If they can't do that then they have absolutely no case.

In this particular case there was no dispute that the CDs were unauthorized copies(bootlegs) and therefore whether or not he produced them or commited any crime in posessing them the discs themselves are contraband due to the fact that were illegally produced.

If you look at the CDs in my car they are all copies and WMA discs. I don't put originals in the car because they seem to get ruined on a regular basis. If the police were to seize them I would claim fair use under the licence agreement and could produce the originals or the receipts from the music download service I use(Rhapsody). I am fairly confident that a jury won't see a single copy of about a dozen or so CDs as a bootlegging operation.

Coronach
August 25, 2006, 05:34 PM
My reading says of it says that, while Cohen couldn't be convicted of bootlegging CD's, the CD's were still bootleg and therefore still contraband. As contraband, they cannot be returned.Suddenly, my concern over this decision has lessened. Amazing what a little perspective will do.

So, let me make sure I have this right: the guy admitted that they were bootlegged copies. He did not claim 'fair use', so the police did not have to prove that he was violating any fair use provisions of various state or federal laws (as they would have to do if they, for instance, found a burned CD in your car). He completely conceded the fact that they were contraband, and fought the charges of distribution and/or counterfeiting, and won?

Under that set of facts, I cannot see why anyone would expect the state to give the stuff back. If he claimed it was all legit and none of it was counterfeit, I could see where the state should have to prove it to be otherwise...but in this instance he admitted they were illegal fakes, and merely contested the idea that he had counterfeited them.

As long as I have that correct, I have zero problems with this decision. *shrug*

Mike

jcoiii
August 25, 2006, 05:53 PM
Same thread on TFL linked to the ruling.

The guy who owned the CDs bought them from another person. That other person, then, violated the copyright laws and such. The CDs were therefore contraband.

The counterfeit money example is spot on.

Turkey Creek
August 25, 2006, 06:00 PM
It seems that I constantly repeat the same phrase as follows- The law is whatever some bozo in a black robe says it is- Apparently the written law means nothing and is open to complete disregard- Folks, if they want you, they're going to get you!

ArmedBear
August 25, 2006, 06:05 PM
The simplest parallel would be this: The police found that your stereo and TV were stolen, but you showed that you were not a "fence", that you'd bought them at the swap meet, and didn't know they were stolen.

You might be found innocent of the charge of receiving stolen goods in a court of law, because you showed receipts and you showed that you'd bought the stuff in good faith, with no way of knowing it was stolen.

However, you wouldn't get the stuff back, because it's "hot."

Lupinus
August 25, 2006, 06:12 PM
I don't give a rats patoot what he did, what he may have done, or what he might have done in the future.

If there isn't proof in sufficient quantity and quality to convict him and he was found not guilty he should get his property back.

This is blatant theft and the police involved should be arrested for such and frankly the judges are just as guilty for allowing it. The state supreme court just declared open season on any and all privately owned property that there is even a hint may be illegal or the owner just might maybe someday do something illegal with it.

:fire:

NineseveN
August 25, 2006, 06:29 PM
Uh, guys, it's not his property, he has no legal claim to it as it is all contraband...this does not fall under fair use or anything else.

It's.
Not.
His.
Property.
To.
Claim.
Therefor.
He.
Has.
No.
Legal.
Right.
To.
It.
Thus.
It.
Should.
Not.
Be.
Returned.

Got it?

bg
August 25, 2006, 07:12 PM
Pretty strange...Even one of the most powerful companies
in the world advise you to "back up your files"...Does this
mean that Mr.Gates is possibly breaking the law via his software
warnings ?

TX1911fan
August 25, 2006, 07:37 PM
Except for the crazy DMCA, copyright law allows making copies of copyrighted works for certain fair uses. For example, if you make a copy of a page out of a text book to pass out to your high school biology class, that is ok, even though it would be illegal otherwise. It is for educational purposes, so fair use covers it. There are several categories for fair use, one of which is making copies for personal use. Hence, if I have a valuable book and I don't want it to get ruined while I read it, I can go make an copy of the whole thing, put the original away, and read the copy. Same with a cd. Same with computer software. (It gets weird with CDs and DVDs with copy protection and the DMCA, but hopefully that will get sorted out soon). So, no, Bill Gates is not doing anything bad telling you to back up your files, or your software. As long as its for personal use, you can do it.

In fact, you can even make limited numbers of copies for your friends and family. When cassette tapes first came out, the recording industry went nuts because they said everyone would copy LPs and then give them to everyone. The solution was to allow cassettes and recorders to be sold, but to build in a royalty on blank tapes to be paid to the recording industry. Same thing happened with VHS tapes, and I assume with blank CDs. The courts also ruled that if you made a copy of your favorite LP for your mom, that was ok too. Just so long as you weren't making 100 copies, and that you didn't SELL them. Selling copies is always a no-no.

This guy admitted these were bootleg, so they were a violation to begin with. He does not get the stuff back, period.

The comments above on my trademark example are correct, but you didn't read my whole post. I made the facts in my hypothetical the same as this case, and said that I admitted that Winchester did not give its consent for the trademark use. Therefore, the government would not need to prove it since my testimony established that the consent was not given. Hence, it is a trademark violation and the fake goods are contraband.

I was also much lest concerned about this case once I heard the facts. Amazing how editorial writers seem to gloss over stuff, huh.

rhubarb
August 25, 2006, 11:06 PM
That happened to me once.

I tried to talk my way out of a traffic ticket in a backwoods Arkansas court. After I'd poked holes in the cop's testimony, the judge -verbatim- said, "I don't think you done what he said you done, but I'm gonna find you guilty anyhow."

What we need is more laws to prevent judges from miscarrying justice from the bench. And we need a strong leader to enforce the laws. And a judiciary that won't let the enforcers get away with mistreating us. That should work real good.

Diomed
August 27, 2006, 04:42 AM
So was this guy a counterfeiter, a pirate, or a bootlegger? I guess the question's academic, but there is a difference.

PCGS65
August 27, 2006, 09:36 AM
Indeed, the majority’s reasoning is chilling. The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity.
The government WILL use this to take our firearms.:what:

jcoiii
August 27, 2006, 09:42 AM
If there isn't proof in sufficient quantity and quality to convict him and he was found not guilty he should get his property back.

The guy who was not convicted was not the guy who made the CDs! He bought the CDs from someone else.

This is not a case of someone copying their own CDs in case they are stolen/lost/etc. This is a case of someone buying copied CDs. The buyer is not guilty of breaking copyright laws. But the CDs are illegal anyway.

TX1911fan
August 27, 2006, 10:03 AM
I don't think this has any corrolation to firearms except maybe this. I buy a sawed off shotgun with a 14 inch barrel. I am unaware that the barrel is too short. They prosecute me for the sawed off shotgun, but the jury won't convict me. However, I am not going to get the illegal shotgun back, even though it is my property.

Coronach
August 27, 2006, 05:51 PM
A better example might be counterfeit money.

If you go into a restaurant and unwittingly hand the waitress a fake $20, the police will be called if they catch it. Ultimately you will not be prosecuted for counterfeiting (assuming that you claim, very reasonably, that you got the bill in change at a gas station or somesuch and had no idea it was fake), but you're still out $20.

Mike

AZRickD
August 27, 2006, 06:01 PM
I'm more concerned with the part of the story where police are confiscating camcorders which may or may not shown them doing things they'd might not like Internal Affairs, press or other interested party to see.

Rick

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