§ 3.05 Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility ("Camcording") 18 U.S.§ 2319B

• Jurisdiction: United States

§ 3.05 Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility ("Camcording")—18 U.S.C. § 2319B

The Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9, 119 Stat. 218 (enacted April 27, 2005), created a criminal offense that targets "camcording," the use of camcorders and similar devices to record movies playing in public movie theaters. In addition to the federal camcording offense in § 2319B, most states and the District of Columbia also provide criminal penalties for unauthorized camcording. The elements of an offense under 18 U.S.C. § 2319B are that the defendant (1) knowingly, and (2) without the authorization of the copyright owner, (3) used or attempted to use an audiovisual recording device, (4) to transmit or make a copy of a motion picture or other audiovisual work protected under Title 17, (5) from a performance of such work in a motion picture exhibition facility.³⁹⁴ The maximum punishment for the offense is three years (six years for repeat offenders).³⁹⁵

Section 2319B's mens rea requirement is lower than the "willfulness" requirement for criminal copyright offenses: a § 2319B defendant need only act "knowingly." Additionally, it is not necessary to show infringement of a copyright. Rather, the government need only show that the defendant was transmitting or copying (or attempting to transmit or copy) a copyrighted motion picture without the copyright owner's permission. Although the defenses to infringement set forth in Title 17 would not apply to a prosecution under 18 U.S.C. § 2319B, the statute's legislative history indicates that Congress intended prosecutors to avoid prosecuting cases that would be deemed "fair use" under copyright law.³⁹⁶

An "audiovisual recording device" is defined as a "digital or analog photographic or video camera, or any other technology or device capable of enabling the recording or transmission of a copyrighted motion picture or other audiovisual work, or any part thereof, regardless of whether audiovisual recording is the sole or primary purposes of the device."³⁹⁷ This would appear to apply to camera-phones, PDA phones, and digital cameras (especially those capable of recording video). Congress, however, intended that the offense should not cover incidental uses of these devices in a theater, even though such uses could violate other statutes (such as the copyright laws). See H.R. Rep. No. 109-33(1), at 2-3.

The offense applies...