"DJ Drama" Drama

As reported in the NY Times (Jan. 18) and elsewhere, on Jan. 16, police from Atlanta (and some surrounding towns) along with investigators from the RIAA, raided the offices of DJ Drama in Atlanta, seized 81000 CDs and other items, and arrested Drama (a/k/a Tyree Simmons) and Don Cannon.  The NYT reports the two have been charged with violations of Georgia's RICO statute.  For those with more voyeuristic tendencies, you can see a video report from a local Fox affiliate here.

What's odd about this?  Well, at outlets like Boingboing, there has been much discussion of the fact that record labels and artists often provide new tracks to DJs with the intention of having the DJ include the music in one of their playlists/mixes.  It's not clear whether these arrangements are explicit or merely a tacit understanding, or limited to "live" performances vs. cranking out CD mixes, or whether any such license (even an implied one) existed in this case.  Regardless, it seems that this is not a run-of-the-mill "piracy" case.

But something else is odd.  The authorities involved in the raid were state officials, not federal agents.  And the charged filed are based on Georgia state law, not federal copyright law.  If the basis for the raid and the charges is the unauthorized sale of CDs, wouldn't state law be preempted by federal copyright law under 17 U.S.C. Sec. 301?  Well, maybe, maybe not.

Many states have "true names" laws, which criminalize distribution of sound recordings or audiovisual works that lack a label accurately identifying the producer of the copies.  Generally, these laws are designed to provide a means for local authorities to go after street vendors of pirated CDs and DVDs (without having to involve federal authorities).  California's "true names" statute was upheld against a habeas challenge (based on preemption and overbreadth) in Anderson v. Nidorf, 26 F.3d 100 (9th Cir. 1994).  The Georgia Supreme Court recently considered and upheld Georgia's own "true names" law, Ga. Code. § 16-8-60(b), against a similar challenge in Briggs v. State, No. S06A1146, 2006 WL 3422972 (Ga., Nov. 29, 2006).  (By the way, if reading this case on Westlaw, you may want to simply avert your eyes from the Westlaw-produced synopsis and headnotes.  These characterize the case as involving a copyright violation.  While the case does seem to implicate copyright, the notes don't accurately describe the issue as framed by the court.)  In both these cases, the court majorities found that the state laws in question were not preempted because the state offense included an "extra element" (lack of an identifying label) beyond the elements of a mere copyright violation.  (The "true names" provisions are also drafted so as to apply regardless of the copyright status of the underlying work, or whether the copy was authorized by a copyright owner, so arguably the state true names offenses lack some of the elements of a copyright offense as well.)

However, Georgia's state antipiracy statute goes beyond requiring "true names" labeling, treading into what clearly seems to be copyright territory.  The Georgia law makes it a crime to "[t]ransfer ... any sounds or visual images recorded on [any disc, tape, or other] article ... onto any other [disc, tape, or other] article without the consent of the person who owns the master [disc, tape, or other] article from which the sounds or visual images are derived" or to distribute (or possess with intent to distribute) copies of any article to which which sounds or images have been transferred, "knowing it to have been made without the consent of the person who owns the master [disc, tape, or other] article from which the sounds or visual images are derived." Ga. Code Ann., § 16-8-60(a).

The Briggs court really only address the "true names" aspect of Georgia's law -- with which the defendant had been charged.  And even though a majority upheld it, several dissents and concurrences raised serious concerns about the law's (over)breadth and its facial prohibition on anonymous speech.  The majority was able to avoid directly addressing the other part of § 16-8-60, subsection (a), which would seem to be far more problematic on the issue of preemption.

The DJ Drama case may bring this issue to a head.  I haven't found the specific charge against Simmons and Cannon.  The NYT says it's a state RICO charge, but doesn't mention what the underlying predicate offenses are.  Tring to find the DJ Drama indictment online is complicated by the fact that one DJ Drama's earlier mix complications was actually entitled "The Indictment" (and another, apparently, "The Indictment Papers"), making Google searches all but useless.  (Foreshadowing, perhaps.)

Presumably, the RICO predicates include 16-8-60 violations, which  are among the enumerate racketeering offenses in Ga. Code § 16-14-3(9)(A)(xx) (as Dean Rowan helpfully pointed out in a comment on the Patry Copyright blog last December, discussing Briggs).  And more specifically, it would seem likely that the violations charged would be 16-8-60(a) violations, rather than "true names" violations under 16-8-60(b).  Why?  Although I don't know for sure in this case, it is exceedingly likely that the CDs in question accurately identify both the artists who recorded the underlying content, and the names of the DJs who produced the mixtape CDs.  Unlike a typically street vendor of pirated CDs, a DJ selling mixtapes would want to identify the product as his own, and also will generally (in my admittedly limited experience) identify the various tracks included in the mix.  So a "true names" violation is unlikely.  Perhaps the Georgia authorities have other RICO predicates in mind that are unrelated to the content of DJ Drama's mixtape CDs (like state tax or licensing violations, or maybe someone has been taking DJ Drama's compilation label, "Gangsta Grillz," too literally).  But given the involvement of the RIAA in the raid, and the public statements from the RIAA's Bradley Buckles, et al., it appears that the charges are indeed based on the mixtapes themselves.

If the basis for the DJ Drama RICO charges is indeed a claim of "unauthorized distribution" under Ga. Code 16-8-60(a), then we should expect some vigorous challenges to the statute.  It would seem that Simmons and Cannon likely have the means to mount a vigorous defense, and they certainly have the incentive to do so.  And given that Georgia's "unauthorized distribution" law so closely mirrors federal copyright law, it also seems quite difficult to see how the Georgia statute could withstand such a vigorous challenge.

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