by Jason Fischer
Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon. No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie. (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.) It seems that she was arrested because theater employees saw her operating a video recording device (source). Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?
No. It was those champions of copyright policy, the Rosemont Police. As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission. See 720 Ill. Comp. Stat. 5/21-10.
Now, don’t get me started about what a moron this woman is. Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron. Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement. Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor. With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well. And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.
With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either. She didn’t make her video for personal commercial gain, and she hasn’t distributed anything. So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial. Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal? She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.
Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement: I don’t think that the state of Illinois has the power to enforce its bootlegging statute. Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time. You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners. Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.
Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional. What say you Blevins? Would you throw the book at this chick?
UPDATE: Cook County prosecutors have dropped the charges against Ms. Tumpach (source). Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.