No new developments in that DJ Drama case, really. According to information blogger zeroday apparently got by fax from the Fulton Co. sheriff's office, the basis for the DJ Drama warrants was a RICO violation (violation of Ga. Code 16-14-4), which the warrant apparently characterizes as "related to copyright infringement." I have my doubts as to whether that characterizations is technically true, but at least it appears possible that the state authorities are predicating their RICO charges on violations of federal (copyright) law. According to Ga. Code. 16-14-3(9), "racketeering activity" can include any one of a multitude of state crimes (including unauthorized transfers, see below), but also some federal crimes:
'Racketeering activity' shall also mean any act or threat involving murder, kidnapping, gambling, arson, robbery, theft, receipt of stolen property, bribery, extortion, obstruction of justice, dealing in narcotic or dangerous drugs, or dealing in securities which is chargeable under the laws of the United States or any of the several states and which is punishable by imprisonment for more than one year.
Ga. Code 16-4-3(9)(B). Federal copyright violations are not specifically mentioned. The state authorities could try to shoehorn their allegations of copyright infringement into "theft" or possibly "receipt of stolen property," but it's unclear whether that would work. While colloquially, many people refer to copyright piracy as "theft," infringement is a distinct concept under federal law (although criminal copyright offenses are grouped with other offenses against property). If, however, the state's RICO theory is based on violations of federal copyright law, the case would still seem to face some serious preemption problems under Section 301.
A more likely scenario, it would seem, is that the state RICO charge is based on Ga. Code 16-8-60, and I continue to marvel at the breadth of this statute purporting to criminalize all unauthorized distribution of sound recordings or audiovisual works without the consent of the owner of the "master" (whatever that means). It is really difficult to see how this would not be preempted by federal copyright law. Of course, it also is not limited to creative expression (applying to any sounds or images) and lacks a fair use exception -- the two "First Amendment safeguards" mentioned in the Eldred v. Ashcroft case -- although it does offer some exceptions such as "archival use," and transfers made for the personal, non-profit use of the transferor.
Nevertheless, read literally, it raises some serious First Amendment issues. Even more interesting, the statute requires consent of the owner of the "master" copy "from which the sounds or visual images are derived," as opposed to the actual creator of those sounds or images. That's a significant difference from U.S. copyright law, under which the ownership of a physical copy doesn't not convey title in the underlying content. That difference isn't sufficient for the statute to avoid preemption problems, but it raises all sorts of interesting questions on its own. If I buy the negative of a photograph from the original photographer (perhaps because it's an embarassing pic, or maybe I just like it), does Georgia law prohibit subsequent sale of any copies of that photograph? Even copies that are made with permission of the photographer, or even copies made by the photographer before I purchased the negative? Wow.
Hopefully, a charging document and some more details of the state's theory will be available online soon and can settle some of this speculation.
By the way, the Georgia legislature used to make the state's law available online so that, you know, people could learn what the law is. Oh so helpfully, they have decided that's too much trouble, and now direct web visitors to Lexis and/or Westlaw. Gee, thanks.
The relevant page from the Georgia legislature's site can still be found in Google's cache at http://126.96.36.199/search?q=cache:www.legis.state.ga.us/legis/GaCode/%3Ftitle%3D16%26chapter%3D8%26section%3D60
But since it'll eventually disappear from there, here is the text of the relevant Georgia law, Ga. Code 16-8-60, in all its glory: .