The movie industry not only has to worry about hackers who may obtain copies of films and distribute them on the internet, as Sony recently experienced, but also the sale of counterfeit copies of DVDs. Maryland has a statute criminalizing trademark counterfeiting, whose constitutionality was upheld last week in the State’s highest Court in a case called McCree v. State.
The opinion indicates that a State Trooper pulled over McCree for a traffic stop, and found 206 DVDs in the car. McCree was charged with violating a criminal statute providing that a person may not willfully “manufacture, produce, display, advertise, distribute, offer for sale, sell or possess with intent to sell” goods that the person knows bear a counterfeit trademark. An investigator for the Content Protection Office of the Motion Picture Association of America testified at trial that the DVDs contained numerous counterfeit marks, and were counterfeit copies of movies.
McCree testified that he was licensed to sell DVDs, and claimed he did not know they were counterfeit. The jury clearly did not believe him, and he was convicted and sentenced to jail. On appeal, he challenged the constitutionality of Maryland’s trademark protection law, claiming that it violated his First Amendment free speech rights by being overbroad on its face and void for vagueness.
The Court of Appeals had no trouble upholding the validity of the statute. Although it recognized that commercial speech may be entitled to constitutional protection, the law did not criminalize merely displaying a sign or a pamphlet. The Court found that the description of conduct clearly places “display” in the context of selling goods known to violate trademark law, and the law was not overbroad. It also found that the law clearly defined the intellectual property rights it sought to protect and was not unconstitutionally vague.
Hopefully the movie business, and all of us, will have a Happy New Year.