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

[ebd10]

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.

 

[Zedicus]

Whiskey Tango Foxtrot?

Theft under Color of Law Plain and Simple.

 

[Devonai]

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.

 

[Sindawe]

Cash seized from travellers w/o the travellers being charged.

Half hearted tokens to defend our borders from invasion.

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

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

 

[gezzer]

I hope this goes to the SCOTUS. Some of our supreme court NEED TO BE REMOVED, NH Citizens WORK on it!!!!!!!!!!

 

[Coronach]

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]

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]

If that editorial is accurate, then...well, I am truly speechless.

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

Sawdust

 

[dfaugh]

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]

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]

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]

+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]

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]

How are counterfeit CDs different from counterfeit money? If something was illegally made, how is possession legal?

Art

 

[ceetee]

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]

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]

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]

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]

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]

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]

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]

I guess I'll wait and see if my congressman is up on the case.

 

[ArmedBear]

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]

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]

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.