prosecution for unlawful use of recorded sounds under section sixteen dash seven eight two of the only criminal code in short it does not and for two reasons first section sixteen dash seven is a criminal statute does not fit the category of laws preempted by three hundred one and second the only law contains extreme element elements beyond the exclusive rights of those covered by the copyright act on the first point three one pm state laws that point legal  criminal state laws like sixteen guest seven outside of its scope this is because criminal laws do not entitle a person to any particular right in fact the opposite is true they protect public or societal norms by punishing prohibited conduct this is why you see at least in part why criminal sanctions do not impute a private right of action or that an individual does not have a right to compel prosecution a criminal prosecution at least make a slow showing that is not is it true that every court nationwide i face only state measures that afford a person certain entitlements of one to a copyright and this is also supported in three on one side just side of history there's an extensive house report that accompanies three hundred one and it says very clearly that the purpose of three zero one was to abolish the dual system of copyright where you had state common law that protected unpublished works and federal statutory law that protected publish works no where in this you find kyra same that there is a problem with state criminal because a criminal laws is a traditional area of state concern and that congress is expected to speak clearly and to make its intent plain when it seeks to intrude into areas that are traditionally reserved for the states such as criminal law enforcement to seek additional protection in combating record piracy it would be counterproductive for congress and it's up to combat piracy to display state laws and then lose the the assistance of local law enforcement in co so they're trying to sort of activity locally rather than just relying on a bottle but just in federal authority over them that are relying on private actors to see to enjoying that such contact or seek money damages would not only be to be of who's rights are being protected or i'm sees me which you are whites are the focus of preemption and then in the end in three i want to talk about that no person shall be entitled to it so the focus of the preemption three on one is state laws they create or define or are conferring rights and you don't find that in a in a criminal statute there's an assumption that there was some sort of preexisting right and they had the state criminal law there is then in place in force or at least protect much is that what is critical is through a want and what is the target of banning congress from very specifically in terms of what sort of state activity it was seeking to have set aside and there you find it is the target of his under three hundred one the statute requires as an element that the offender in it for profit making for profit is not among the exclusive rights under the copyright act in fact the full profit interest implicates a variety of state concerns  in fact in an acting session sixty seven the legislature of our state sought to criminalize record piracy section sixty seven does not require any additional elements that qualitatively distinguish it from copyright infringement consequently it is ree are governed exclusively by this title there are no persons in title to any such right or equivalent right in any such work under the common law or statues of any state in fact the only legislative debates that was called state the overbred argument wasn't accepted because it had to be real substantial as well as real writers and that their analysis in regards to the first amendment claim but a claim with this is not substantial one side of illinois barred the distribution other object device or medium now known or here after invaded this statute it's not restricted to just the music industry or movie industry it's any sound recording it's distributed this is fairly substantial and in fact you it appears that the other courts that have rejected the similar due process arguments have done it and i'd like you to redress this have done it on the basis that this kind of statute is the dual purpose of the second part of the purpose there's a big north v your argument according to these other jurisdiction ignores the main purpose of the statute which is to protect consumers and it's on that basis in the dual purpose   how do you address the fact that that argument doesn't recognize that the legislature was very determined that this would not be innocent at the legislature make that determination that it is on the first amendment question section sixteen yes it is not nearly as broad as the defendant makes it out to be it does not compel all performers and manufacturers to disclose their identities under all circumstances it's much more narrow than than it applies only to the war profiteers actions which means performers and manufacturers can distribute their material for free or distribute costs it also allows for performers to perform under a pseudonym so they do not have to disclose their true identity only me factures must disclose their true name and address but not all manufacturers because only those who distribute their material for profit or cover and those who seek anonymity industry in their works second defendants burden here is the proof that the statute on the first amendment question is that it imposes a realistic and substantial threat to free speech compared to the statutes are legitimate applications in other words he must show that it will realistically deter a substantial amount of speech he does not do than here is use in the the opinion of anderson vs knight or if the court points out that most performers or manufacturers would desire disclosure of their identities so in each of those applications you find out that section eight wouldn't deter any speech at all and the defendant doesn't make any serious effort to demonstrate that the statute poses a realistic threat he realizes screw civilian hypothetical situations there's no bad performers or manufacturers operate anonymously really defending has to show that the statute poses a substantial threat and again all we have is examples of there are no examples of anonymity use by performers or manufacturers in the distribution of the material the defendant relies exclusively on hypothetical situations and with respect to this sort of standard the station does have a realistic and substantial threat to free speech compared with the original many applications a few shows that then the people would have to show that there's a compelling interest that's nearly tailored which often which justif rationally implement its goal are implemented schools of protecting consumers as well as combating record piracy and in the process it doesn't violate two it doesn't violate due process the primary goal of the statute is the protection simmers from or disclosure of the performers name assures the consumer that the contents of the recording is from one performer not another the manufacturers the schools or tells the consumer gives them a man dress  your honor in reading section sixty eight there's nothing in it that says it just deals with the record industry is a very very broad statute in fact counsel makes things talk about the hypotheticals use but in dealing with over but this court has always used hypotheticals for that position has no merit whatsoever in fact it over with analysis it's never been done in a piecemeal fashion so we don't have to wait for someone to be arrested and punished to bring before this court that is the purpose of i would presume to be available to anyone who's deceived by a product in what we're talking about here is a criminal statute for arguably what is really just a simple problem  we have to remember regarding the hype that with regarding problems with hypotheticals that that's what this court did in coppinger we talked about the hypothetical bible in the second compartment in which we talked about the hypothetical farmer who may be demolishing the