Bill Text: IL HB5816 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Amends the Criminal Code of 1961. Makes technical changes in the Sections concerning the offenses of unlawful use of recorded sounds or images and unlawful use of unidentified sound or audio visual recordings. Amends the Counterfeit Trademark Act. Makes technical changes in the Sections concerning the use of counterfeit marks and the penalties for selling or using counterfeit items.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-02-10 - Referred to Rules Committee [HB5816 Detail]

Download: Illinois-2009-HB5816-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB5816 Introduced 2/10/2010, by Rep. Michael J. Zalewski SYNOPSIS AS INTRODUCED:
720 ILCS 5/16-7 from Ch. 38, par. 16-7
720 ILCS 5/16-8 from Ch. 38, par. 16-8
765 ILCS 1040/2 from Ch. 140, par. 24
765 ILCS 1040/8
Amends the Criminal Code of 1961. Makes technical changes in the Sections concerning the offenses of unlawful use of recorded sounds or images and unlawful use of unidentified sound or audio visual recordings. Amends the Counterfeit Trademark Act. Makes technical changes in the Sections concerning the use of counterfeit marks and the penalties for selling or using counterfeit items.
LRB096 19175 RLC 34566 b
A BILL FOR
HB5816 LRB096 19175 RLC 34566 b
AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 1961 is amended by changing
Sections 16-7 and 16-8 as follows:
(720 ILCS 5/16-7) (from Ch. 38, par. 16-7)
Sec. 16-7. Unlawful use of recorded sounds or images.
(a) A person commits unlawful use of recorded sounds or
images when he:
(1) Intentionally, knowingly or recklessly transfers
or causes to be transferred without the consent of the
owner, any sounds or images recorded on any sound or audio
visual recording with the purpose of selling or causing to
be sold, or using or causing to be used for profit the
article to which such sounds or recordings of sound are
transferred.
(2) Intentionally, knowingly or recklessly sells,
offers for sale, advertises for sale, uses or causes to be
used for profit any such article described in subsection
16-7(a)(1) without consent of the owner.
(3) Intentionally, knowingly or recklessly offers or
makes available for a fee, rental or any other form of
compensation, directly or indirectly, any equipment or

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machinery for the purpose of use by another to reproduce or
transfer, without the consent of the owner, any sounds or
images recorded on any sound or audio visual recording to
another sound or audio visual recording or for the purpose
of use by another to manufacture any sound or audio visual
recording in violation of Section 16-8.
(4) Intentionally, knowingly or recklessly transfers
or causes to be transferred without the consent of the
owner, any live performance with the purpose of selling or
causing to be sold, or using or causing to be used for
profit the sound or audio visual recording to which the
performance is transferred.
(b) As used in this Section and Section 16-8:
(1) "Person" means any individual, partnership,
corporation, association or other entity.
(2) "Owner" means the person who owns the master sound
recording on which sound is recorded and from which the
transferred recorded sounds are directly or indirectly
derived, or the person who owns the rights to record or
authorize the recording of a live performance.
(3) "Sound or audio visual recording" means any sound
or audio visual phonograph record, disc, pre-recorded
tape, film, wire, magnetic tape or other object, device or
medium, now known or hereafter invented, by which sounds or
images may be reproduced with or without the use of any
additional machine, equipment or device.

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(4) "Master sound recording" means the original
physical object on which a given set of sounds were first
recorded and which the original object from which all
subsequent sound recordings embodying the same set of
sounds are directly or indirectly derived.
(5) "Unidentified sound or or audio visual recording"
means a sound or audio visual recording without the actual
name and full and correct street address of the
manufacturer, and the name of the actual performers or
groups prominently and legibly printed on the outside cover
or jacket and on the label of such sound or audio visual
recording.
(6) "Manufacturer" means the person who actually makes
or causes to be made a sound or audio visual recording. The
term manufacturer does not include a person who
manufactures the medium upon which sounds or visual images
can be recorded or stored, or who manufactures the
cartridge or casing itself.
(c) Unlawful use of recorded sounds or images is a Class 4
felony; however:
(1) If the offense involves more than 100 but not
exceeding 1000 unidentified sound recordings or more than 7
but not exceeding 65 unidentified audio visual recordings
during any 180 day period the authorized fine is up to
$100,000; and
(2) If the offense involves more than 1,000

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unidentified sound recordings or more than 65 unidentified
audio visual recordings during any 180 day period the
authorized fine is up to $250,000.
(d) This Section shall neither enlarge nor diminish the
rights of parties in private litigation.
(e) This Section does not apply to any person engaged in
the business of radio or television broadcasting who transfers,
or causes to be transferred, any sounds (other than from the
sound track of a motion picture) solely for the purpose of
broadcast transmission.
(f) If any provision or item of this Section or the
application thereof is held invalid, such invalidity shall not
affect other provisions, items or applications of this Section
which can be given effect without the invalid provisions, items
or applications and to this end the provisions of this Section
are hereby declared severable.
(g) Each and every individual manufacture, distribution or
sale or transfer for a consideration of such recorded devices
in contravention of this Section constitutes a separate
violation of this Section.
(h) Any sound or audio visual recordings containing
transferred sounds or a performance whose transfer was not
authorized by the owner of the master sound recording or
performance, in violation of this Section, or in the attempt to
commit such violation as defined in Section 8-2, or in a
solicitation to commit such offense as defined in Section 8-1,

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may be confiscated and destroyed upon conclusion of the case or
cases to which they are relevant, except that the Court may
enter an order preserving them as evidence for use in other
cases or pending the final determination of an appeal.
(i) It is an affirmative defense to any charge of unlawful
use of recorded sounds or images that the recorded sounds or
images so used are public domain material. For purposes of this
Section, recorded sounds are deemed to be in the public domain
if the recorded sounds were copyrighted pursuant to the
copyright laws of the United States, as the same may be amended
from time to time, and the term of the copyright and any
extensions or renewals thereof has expired.
(Source: P.A. 95-485, eff. 1-1-08.)
(720 ILCS 5/16-8) (from Ch. 38, par. 16-8)
Sec. 16-8. Unlawful use of unidentified sound or audio
visual recordings.
(a) A person commits unlawful use of of unidentified sound
or audio visual recordings when he intentionally, knowingly,
recklessly or negligently for profit manufactures, advertises
or offers for sale, sells, distributes, transports, vends,
circulates, performs, leases, or possesses for such purposes,
unidentified sound or audio visual recordings or causes the
manufacture, advertisement or offer for sale, sale,
distribution, transportation, vending, circulation,
performance, lease, or possession for such purposes,

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unidentified sound or audio visual recordings.
(b) Unlawful use of unidentified sound or audio visual
recordings is a Class 4 felony; however:
(1) If the offense involves more than 100 but not
exceeding 1000 unidentified sound recordings or more than 7
but not exceeding 65 unidentified audio visual recordings
during any 180 day period the authorized fine is up to
$100,000; and
(2) If the offense involves more than 1,000
unidentified sound recordings or more than 65 unidentified
audio visual recordings during any 180 day period the
authorized fine is up to $250,000.
(c) Each and every individual manufacture, advertisement
or offer for sale, sale, distribution, transportation,
vending, circulation, performance, lease, or possession for
such purposes, an unidentified sound or audio visual recording
constitutes a separate violation of this Section.
(c-5) Upon conviction of any violation of this Section, the
offender shall be sentenced to make restitution to any owner or
lawful producer of a master sound or audio visual recording, or
to the trade association representing such owner or lawful
producer, that has suffered injury resulting from the crime.
The order of restitution shall be based on the aggregate
wholesale value of lawfully manufactured and authorized sound
or audio visual recordings corresponding to the non-conforming
recorded devices involved in the offense, and shall include

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investigative costs relating to the offense.
(d) If any provision or item of this Section or the
application thereof is held invalid, such invalidity shall not
affect other provisions, items or applications of this Section
which can be given effect without the invalid provisions, items
or applications and to this end the provisions of this Section
are hereby declared severable.
(e) Any unidentified sound or audio visual recording used
in violation of this Section, or in the attempt to commit such
violation as defined in Section 8-4, or in a conspiracy to
commit such violation as defined in Section 8-2, or in a
solicitation to commit such offense as defined in Section 8-1,
may be confiscated and destroyed upon conclusion of the case or
cases to which they are relevant, except that the Court may
enter an order preserving them as evidence for use in other
cases or pending the final determination of an appeal.
(Source: P.A. 95-485, eff. 1-1-08.)
Section 10. The Counterfeit Trademark Act is amended by
changing Sections 2 and 8 as follows:
(765 ILCS 1040/2) (from Ch. 140, par. 24)
Sec. 2. Whoever uses a counterfeit mark or or imitates any
trade-mark or service mark of which he or she is not the
rightful owner or in any way utters or circulates any
counterfeit or imitation of such a trade-mark or service mark

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or knowingly uses such counterfeit or imitation or knowingly
sells or disposes of or keeps or has in his or her possession,
with intent that the same shall be sold or disposed of, any
goods, wares, merchandise, or other product of labor or
service, to which any such counterfeit or imitation is attached
or affixed, or on which any such counterfeit or imitation is
printed, painted, stamped or impressed, or knowingly sells or
disposes of any goods, wares, merchandise or other product of
labor contained in any box, case, can, or package to which or
on which any such counterfeit or imitation is attached,
affixed, printed, painted, stamped or impressed, or keeps or
has in his possession with intent that the same shall be sold
or disposed of, any goods, wares, merchandise or other product
of labor in any box, case, can or package to which or on which
any such counterfeit, or imitation is attached, affixed,
printed, painted, stamped or impressed or knowingly sells a
service using a counterfeit service mark, shall be guilty of a
Class A misdemeanor for each offense, or in the case of a
counterfeit item shall be punished as provided in Section 8.
(Source: P.A. 96-631, eff. 1-1-10.)
(765 ILCS 1040/8)
Sec. 8. Sentence.
(a) A person who who knowingly sells, offers for sale,
holds for sale, or uses fewer than 100 counterfeit items or
counterfeit items having a retail value in the aggregate of

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$300 or less is guilty of a Class A misdemeanor and shall be
fined at least 25% of the retail value of all counterfeit items
but no more than $1,000, except as follows:
(1) A person who has a prior conviction for a violation
of this Act within the preceding 5 years is guilty of a
Class 4 felony and shall be fined at least 50% but no more
than 100% of the retail value of all counterfeit items.
(2) A person who, as a result of the offense, causes
bodily harm to another is guilty of a Class 3 felony and
shall be fined at least 50% but no more than 100% of the
retail value of all counterfeit items.
(3) A person who, as a result of the offense, causes
serious bodily harm to, or the death of, another is guilty
of a Class 2 felony.
(b) A person who knowingly sells, offers for sale, holds
for sale, or uses 100 or more but fewer than 500 counterfeit
items or counterfeit items having a retail value in the
aggregate of more than $300 but less than $10,000 is guilty of
a Class 3 felony and shall be fined at least 25% but no more
than 100% of the retail value of all counterfeit items, except
as follows:
(1) A person who has a prior conviction for a violation
of this Act within the preceding 5 years is guilty of a
Class 2 felony and shall be fined at least 50% but no more
than 100% of the retail value of all counterfeit items.
(2) A person who, as a result of the offense, causes

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serious bodily harm to, or the death of, another is guilty
of a Class 2 felony.
(c) A person who knowingly sells, offers for sale, holds
for sale, or uses 500 or more but fewer than 2,000 counterfeit
items or counterfeit items having a retail value in the
aggregate of $10,000 or more but less than $100,000 is guilty
of a Class 2 felony and shall be fined at least 50% but no more
than 100% of the retail value of all counterfeit items, except
that a person who has a prior conviction of this Act within the
preceding 5 years is guilty of a Class 2 felony and shall be
fined at least 100% but no more than 300% of the retail value
of all counterfeit items.
(d) A person who knowingly sells, offers for sale, holds
for sale, or uses 2,000 or more counterfeit items or
counterfeit items having a retail value in the aggregate of
$100,000 but less than $500,000 is guilty of a Class 1 felony
and shall be fined at least 50% but no more than 100% of the
retail value of all counterfeit items, except that a person who
has a prior conviction of this Act within the preceding 5 years
is guilty of a Class 1 felony and shall be fined at least 100%
but no more than 300% of the retail value of all counterfeit
items.
(e) A person who knowingly sells, offers for sale, holds
for sale, or uses 2,000 or more counterfeit items or
counterfeit items having a retail value in the aggregate of
$500,000 or more is guilty of a Class 1 non-probationable

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felony.
(e-5) For the purposes of determining the number of
counterfeit items under subsection (a), (b), (c), (d), or (e),
the service marks or trade marks need not be an aggregate of
identical marks but may be the aggregate of all counterfeit
items offered for sale, held for sale, or used by the
defendant.
(f) Unless otherwise specifically provided, a person,
including a corporation, convicted of violating this Act shall
be fined at least 25% of the retail value of all the
counterfeit items. In addition to any fine, the court shall
order that restitution be paid to the owners of the trademark,
trade name, or service mark, and to any other victim of the
offense.
A manufacturer of counterfeit items is guilty of a Class 3
felony for a first offense and a Class 2 felony for second or
subsequent offenses and may be fined up to 3 times the retail
value of all counterfeit items produced by the manufacturer.
(h) A person having possession, custody, or control of more
than 25 counterfeit items or counterfeit marks shall be
presumed not to be simply in possession of such, but to possess
said items with intent to offer for sale, to sell, or to
distribute.
(i) A state or federal certificate of registration of
trademark is prima facie evidence of the facts stated therein.
(j) The remedies provided herein shall be cumulative to the

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other civil and criminal remedies provided by law.
(Source: P.A. 96-631, eff. 1-1-10.)