Transcript

IN THE SUPREME COURT OF THE UNITED STATES

PAUL EDMOND DOWLING, Petitioner v. UNITED STATES

No. 84-589

April 17, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:05 o'clock a.m.

APPEARANCES:

MICHAEL D. ABZUG, ESQ., Los Angeles, Cal.; on behalf of Petitioner.

CAROLYN FRANCES CORWIN, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: I believe we'll hear arguments first this morning in Dowling against the United States. Mr. Abzug, you may proceed whenever you're ready.

ORAL ARGUMENT OF MICHAEL D. ABZUG, ESQ. ON BEHALF OF THE PETITIONER

MR. ABZUG: Mr. Chief Justice, and may it please the Court:

The issue before the Court today is whether the shipment of records across state lines by Petitioner which contained copyrighted musical compositions used without their copyright owner's consent falls within the proscriptions of the National Stolen Property Act.

Preliminarily, I'd like to begin my discussion today by replying to two points that were raised by the Respondent in its brief. The first point concerns the nature of the theft in this case. Counts two through nine of the indictment, which contain the National Stolen Property Act counts, charge that the phono records were stolen, converted, and taken by fraud, in that they were manufactured without the consent of the copyright proprietors.

As such, the theft charge in this case is nothing more than copyright infringement. The reason that it's important to emphasize this statement at the outset about the nature of the theft is that the Respondent in his brief goes to great lengths in making note of the fact that the Petitioner and his co-conspirators obtained some of the sound materials for the albums that they used in methods that are traditionally associated with theft and stealing.

For example, their brief is replete with examples of how some of the co-conspirators in this case bribed employees of NBC to get some of the source material for their records and the sounds. In one instance, there's an allegation that there was Mr. Abzug that Mr. Dowling went to a fan of Elvis Presley and asked him to borrow an acetate of one of the Elvis Presley performances and didn't tell him he was going to use it for commercial purposes.

But the Petitioner submits that these facts have nothing to do with this case because he is not charged with infringing the copyright to the sounds and he's not charged with stealing the copyrighted material from NBC.

Our argument is simply that the Congressional intent to include acts of copyright infringement as goods, wares, and merchandise which are capable of being stolen and converted or taken by fraud is ambiguous. The common meaning of the language used by Congress in the National Stolen Property Act we think is ambiguous and does not necessarily entail items like the copyright privilege.

This brings me to the second point that I wanted to bring to the Court's attention, which is that Congress could have expressed itself more clearly when it drafted the National Stolen Property Act if it wanted to include items such as copyright infringement. Now, I'm not saying that Congress when it drafted the National Stolen Property Act had to include an exhaustive laundry list, as it were, of every type of property that it wanted to protect under the Act.

But I am basing this observation on this Court's opinion in Williams versus United States, which held that when a choice has to be made between two readings of what Congress has made a crime, it is appropriate before choosing the harsher alternative, which in this instance is the National Stolen Property Act, which has felony penalties, to require that Congress should have spoken in language that is clear and definite.

Now, in this connection I'd like to invite your attention to the fact that in 1981, for example, Senator Strom Thurmond introduced a bill before Congress which was a proposed revision of the federal criminal code, which comprehensively defined property and would have eliminated a lot of the ambiguities in the National Stolen Property Act that we face today.

In that bill, which is Senate Bill 1630, they define property in a much different manner and a much more detailed manner than it was defined in 1934. It was defined as anything of value, including tangible or intangible property, including rights, privileges, and interests.

Now, unfortunately --

QUESTION: Well, Mr. Abzug, isn't the property here the records that were transported, not the copyright?

MR. ABZUG: Well, it's of course undeniable, Your Honor, that the physical means of transporting the musical composition was the phono record. It's also --

QUESTION: Well, there's no question that phonograph records would fit the definition of property under the Act without any question, isn't it?

MR. ABZUG: Well, there is no question that a phonograph is a tangible article, that's true. But the point, in answer to your question, Your Honor, the point that I'm trying to make clear to the Court is that the property interest that Congress is seeking to protect under the National Stolen Property Act in this interest and the property interest that the indictment identifies as stolen and as of value to the copyright holder is the copyright privilege itself. That is an intangible article.

QUESTION: Well, but hasn't the Court and haven't lower courts generally treated intangible rights that are incorporated into tangible form as the tangible article in question for purposes of this Act? For instance, Xeroxes, Xerox copies of stolen trade secrets or geographic maps, things of that kind, have all been treated as though it's the map we're looking at or the Xerox copy or whatever it may be.

MR. ABZUG: Well, there's two -- yes, you're right. There's two -- the short answer is you're right. The lower answer is that in the first instance we would contend, the Petitioner would contend, that although the weight of authority is to construe property under the National Stolen Property Act as including articles of mixed character, if you can put it that way, articles that contain not only an intangible or tangible component, that's not the same as saying that that was Congress' intent.

And the underlying theoretical underpinning of our argument, I suppose, is that it's for Congress, when it enacted the National Stolen Property Act, to make it clear that the courts could indeed include the kind of articles that you're talking about in the prosecutions under the National Stolen Property Act. And our argument is that the language itself doesn't really make that clear, for the reasons cited in the decision of United States versus Smith.

QUESTION: Your point is that the physical properties that make up the phonograph record were not stolen from anyone.

MR. ABZUG: Yes, that's one point. The second thing that I'd like to bring to your attention is that -- and this gets us into a discussion that really was termed metaphysical, almost, by the court in United States versus Atherton, is that if you focus on, as the Government does, the tangible aspect of the item that Mr. Dowling shipped across state lines, if you say it's solely a tangible good, it's just a record and since it's a tangible record that's the subject of the indictment and therefore there's no question but it falls within the definition of goods, wares, and merchandise, you fall into another conceptual difficulty that was identified by the Second Circuit in United States versus Bottone.

And that conceptual difficulty is this. Let's take an example where somebody goes into an office and they memorize a chemical formula which is confidential. And the office let's suppose is in New Jersey, and then they memorize the formula. They don't write it down on a piece of paper. They run across the river to New York and they write it down, and then they use the information to the disadvantage of the person that owned it.

In a sense, even though the information is transferred across the state border without being reified in a tangible object, nonetheless the loss to the person that has the information, the property interest that presumably Congress was supposed to be trying to protect under the National Stolen Property Act, is just the same.

It doesn't really make any difference whether you write it down on a piece of paper and bring that across the state border or memorize it in your head and walk across the river and then write it down.

So I guess the overall point that I want to make is that this whole question of tangible versus intangible articles in a way is almost kind of a red herring. I mean, you really can't resolve the intent of Congress, at least through the words of the statute, by trying to decide if a certain article was tangible or if it's intangible.

Our point simply is that this whole discussion, the whole litigation that's been inspired over the intangible/tangible dichotomy, is really given birth to by the ambiguity of the statute that was drafted in 1980 -- excuse me, in 1934. And under the decision of United States versus -- under the decision of Williams versus United States, it's up to Congress to have eliminated the potential for this kind of a discussion.

QUESTION: Well, is it your point that the statute as drafted by Congress includes only tangible or reified property?

MR. ABZUG: Yes, that is our point. Our point is that Congress -- to state it a different way if I may, Your Honor, I suppose our point is that in drafting the statute Congress did not use language that would have included tangible articles with a substantial intangible component, like copyrighted records.

And it could have drafted the statute more clearly, and I've cited this example of the bill introduced by Strom Thurmond to the Court's attention. It didn't, and because of the principles that we have to construe criminal statutes narrowly and --

QUESTION: Well, certainly in 1934 there were concepts of property in existence -- you know, customer lists and covenant not to compete cases and that sort of thing -- which were not really reified, as you put it, were not tangible. Now, would you say that a theft of a customer list, even though it was not embodied on any piece of paper, was not property within the Stolen Property Act?

MR. ABZUG: I would say that there would be difficulty in making that prosecution under the National Stolen Property Act as presently drafted. It is true, of course, that there were -- the whole notion of copyright protection was in existence in 1934, and indeed there was a specific statute that was designed to deal with it in the criminal fashion, the Copyright Act of 1909.

The point is that Congress didn't explicitly include intangible types of articles like the copyright privilege when it drafted the National Stolen Property Act, although it did include articles which had an intangible component like customer lists in the statutory language.

For example, the full language of the statute is "goods, wares, merchandise, money and securities." Now, money and securities are perhaps different than traditional goods, wares and merchandise, closer in concept to the stolen records that are at issue in this case.

QUESTION: Let me ask you a question. I must say, I'm a little puzzled by your argument. You don't deny that the phono records, the physical objects that were shipped across state lines, as I understand what the indictment charges, were goods, wares, or merchandise within the meaning of the Act, do you? I thought you took the position they weren't stolen or converted or taken by fraud, that that was the issue?

MR. ABZUG: Well, we're contending -- we make two arguments, Your Honor. We're first contending that this is not a stolen vinyl case, as it were; it's really a stolen copyright case. I mean, the article that is stolen in this case is not the vinyl on the records; it's the property interest that is at issue here.

QUESTION: Well, the indictment talks about the thing that was shipped across, the record, were phono records containing Elvis Presley vocal performances. I guess they proved that some Elvis Presley records were shipped across state lines. You don't deny they were goods, wares or merchandise, do you?

MR. ABZUG: Well, but you didn't read the entire language of the statute.

QUESTION: "Knowing them to be stolen, converted, or taken."

MR. ABZUG: Stolen in that they were manufactured without the copyrighter's --

QUESTION: So that the issue, then, is whether they were stolen or not.

MR. ABZUG: That's one of the issues, yes.

QUESTION: I don't see, what's the other issue? Tell me again the other issue?

MR. ABZUG: I'm sorry. The other issue is -- let me state it as clearly as I can -- goods, wares -- in 1934 --

QUESTION: I'll agree with you. Let's just assume for a moment that goods, wares, and merchandise doesn't include copyrights. But they didn't accuse you of shipping copyrights across state lines.

MR. ABZUG: Well, I guess the thrust of our argument is that the article that was transported across the state line was in a very real sense the copyright privilege, because the --

QUESTION: But that's the only thing that was stolen.

MR. ABZUG: That's right.

QUESTION: Well, but then you're argument that the article that was shipped across state lines was not -- well, I don't know.

QUESTION: So supposing I go into a record store and steal 100 records and ship them across state lines. Certainly those records are goods, wears, and merchandise, are they not? You can answer that yes or no.

(Laughter.)

MR. ABZUG: I would have to say that the thrust of our argument would be yes.

QUESTION: But are you saying that when the person simply takes an idea and puts it on a recording, that that's comparable to, if not the same as, going in and memorizing a secret document or trade secret and then later going and writing it out, that therefore there is no tangible property being transported across state lines? Is that it?

MR. ABZUG: Yes, that's our position, Your Honor. There's really, in a sense there's no difference. If you say that it turns on whether the right protected, the copyright privilege in this instance, is reduced or reified into a physical form, it really shouldn't make any difference, because the damage to the person that holds the copyright is the same, or holds the information in your example is the same, whether it's reduced to a physical form when it's brought across the state border or not.

So I simply suggest to you that the whole notion of goods, wares, and merchandise and what constitutes stolen and taken by fraud is ambiguous in the sense that it inspires the kinds of discussions that we're having today. I don't think -- and it was up to Congress to eliminate this ambiguity.

QUESTION: Counsel, is there a right of action against your client for making these records and stealing the copyright?

MR. ABZUG: If he hadn't -- the right of action underlying the counts two through nine is the stealing or the trespass upon the copyright. Clearly, if these --

QUESTION: Would you have a right of action for stealing the copyright?

MR. ABZUG: Yes.

QUESTION: Well, isn't that what this case is all about?

MR. ABZUG: I think that's our position, Your Honor.

QUESTION: Your position is that there's nothing else there?

MR. ABZUG: Well, I mean, there's also the aspect of interstate transportation. But the heart of the indictment as far as the National Stolen Property Act is concerned --

QUESTION: Well, why do you have to stretch the law to apply to interstate commerce when you have a right of action without that? Or am I wrong? Don't you have a right of action?

MR. ABZUG: Well, if I understand --

QUESTION: Don't you have a right of action for stealing the copyright, without including commerce?

MR. ABZUG: Oh, that's absolutely true. Under the Constitution -- under the Copyright Act there are criminal provisions for trespassing upon the copyright privilege. It's not necessary to deal with the problem by enacting a statute under the commerce clause.

QUESTION: Well, Mr. Abzug, I guess at the time this Act took place it would have been a misdemeanor offense under the Copyright Act, wouldn't it?

MR. ABZUG: Yes, it would have been.

QUESTION: And it is certainly possible that Congress in the National Stolen Property Act thought that shipping thousands of dollars of bootleg records across state lines deserved protection under the National Stolen Property Act as well.

MR. ABZUG: Yes, except -- I didn't mean to interrupt you, Your Honor.

QUESTION: That's all right.

MR. ABZUG: That's a possible argument, except that its weakened in my judgment by the breadth of the Copyright Act itself as it was drafted in 1909. In other words, if we had a situation where it was simply intrastate, if I can put it that way, reproduction of records in violation of somebody's copyright privilege was a misdemeanor and that was the limited jurisdiction of the statute, and then once you take it across state lines that was in the jurisdiction of another statute and that would be felony activity, then I think your argument, which is made by the Respondent in its brief, would have a lot of force.

The situation here is quite different, however. The Copyright Act as it was drafted in 1909 and as it was in existence in 1979 when Mr. Dowling was indicted would have punished not only the copying activity itself, but the interstate distribution also. In other words, the Copyright Act as it was drafted made criminal anybody that infringed the copyright or anybody that aided and abetted an infringement.

Infringement was defined quite broadly, as it is today, as any act where you reproduce or copy a copyrighted article for public gain or for private advantage.

QUESTION: Well, there's no question that it violated the Copyright Act. But it certainly is possible, it seems to me, and likely that Congress was concerned about focusing attention and imposing greater penalties on mass shipments across interstate lines for a big bootleg operation like we have here, as opposed to an individual copyright infringement.

MR. ABZUG: Well, except that the purpose of the National Stolen Property Act, which is discussed in this Court's opinion in United States versus Sheridan, gives a more limited purpose to the statute. The purpose of the National Stolen Property Act really is twofold, as identified in the Supreme Court's opinion.

First of all, Congress identified a problem whereby people were escaping prosecution by the state authorities by the simple expedient of stealing merchandise in one state and transporting it across the border to another. So Congress enacted the National Stolen Property Act to fill this jurisdictional gap. That is, they criminalized the transportation of the merchandise across state lines, and in so doing brought the whole panoply of federal investigative resources to bear.

The second purpose of the National Stolen Property Act was to make sure that all aspects of the crime were punished, not only the theft itself, which would be punishable under state law, but the transportation, too, which often did not fall within state jurisdiction.

So the reason I'm stating the purposes of the National Stolen Property Act in response to your question is this: that if you presume, as your question did, that the Petitioner's conduct in this instance transporting the article across state lines was punishable under the Copyright Act, then the jurisdictional gap, this window of vulnerability if I can put it this way, that Congress was trying to close when it passed the National Stolen Property Act really was not there, because it was already treated under existing federal jurisdiction.

And I think it would be an anomalous result in my judgment, and I would submit in Congress' as well, to punish the activity that the Respondent identifies in its brief as the most significant activity in treating record piracy, which is the reproduction, the unauthorized reproduction of the records themselves, as a misdemeanor, and then transmitting it, basically ancillary behavior which is the transportation of the records and distribution to the public, as a felony.

I would submit that that would not be Congress' intent.

QUESTION: Well, but Congress it seems to me ought to be much more concerned about making a business, an interstate business of shipping and selling commercially bootlegged records than it would be out of an isolated instance, for instance of somebody home recording in an unauthorized fashion a copyrighted material.

MR. ABZUG: I agree with you, and I'm not disputing what you're saying. What I am saying, however, is that Congress already criminalized that behavior under the Copyright Act. It wasn't necessary to enact the National Stolen Property Act to deal with the kind of behavior that you're talking about.

It was already dealt with under the Copyright Act, and therefore the express purposes behind the enactment of the National Stolen Property Act, which is to make people who transported allegedly stolen articles across state borders subject to federal jurisdiction, is not present in this case, because the business aspect, the transportation aspect, the distribution aspect, is already punishable under federal law. That's the point that I'm trying to make to the Court.

That will conclude my presentation today, unless the Court has any other questions.

CHIEF JUSTICE BURGER: Very well.

Ms. Corwin.

ORAL ARGUMENT OF CAROLYN FRANCES CORWIN, ESQ., ON BEHALF OF RESPONDENT

MS. CORWIN: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to begin by going back to the facts of this case, because I think it's important to understand just what was going on here. The evidence to which Petitioner stipulated shows that he was engaged in an illicit commercial venture of significant magnitude. As the first step in that venture, the Petitioner and his co-conspirators managed to obtain unreleased recordings of Elvis Presley performances that had been stolen from RCA and other studios. They also fraudulently obtained materials from individuals.

QUESTION: Ms. Corwin, you say that these recordings had been stolen. Do you mean by that that the physical record itself had been stolen?

MS. CORWIN: The evidence in the record does show that the master tapes, the physical master tapes, the acetates, which is a form of disk, had been stolen in the sense that employees apparently had taken them out of NBC vaults or RCA vaults. You had things like the Petitioner writing on the outside of a box "RCA stolen tapes."

QUESTION: Larceny by trick.

MS. CORWIN: I think there were a lot of variations, because you had a lot of different sorts of material in this case. But I think all of them did involve some sort of original tangible object that was somehow stolen or converted or taken by fraud.

Now, I'll diverge for a moment because Mr. Abzug has suggested that we cannot properly make that point in this Court because of the way the indictment is drafted. I think if you look at the indictment as a whole it is clear that it is talking about more than a mere act of composition copyright infringement. It's clear we're talking about Elvis Presley performances, particularly when you go back to the conspiracy count which is incorporated by reference in the 2314 counts.

Now, I think there are a couple of other reasons that that issue remains in this case. One is that Mr. Abzug has never in the courts below suggested that the evidence on that point is irrelevant or that there's some sort of a variance from the indictment.

QUESTION: May I ask you a question about that. Were any of those stolen originals shipped across state lines?

MS. CORWIN: No, as far as I am aware the evidence does not show that the originals were shipped.

QUESTION: Would your indictment be good if none of that material had been stolen, if merely they had just infringed?

MS. CORWIN: Yes, we would take the position that there were --

QUESTION: So you don't really rely on the stealing?

MS. CORWIN: Well, I think we want the Court to be aware of the full range of activity in this case.

QUESTION: This is a really bad guy.

MS. CORWIN: Well, our position is there were --

(Laughter.)

MS. CORWIN: -- there was more than one wrongful taking going on here, and I think we have several ways to indicate that the albums were stolen, converted or taken by fraud.

QUESTION: My point is, I don't think that sheds any light on the issue, because your position really is it would be the exactly the same if this hadn't happened, I think.

MS. CORWIN: Well, I think that you can look at the two different situations, because the cases that have come up in which this issue has been litigated in the Courts of Appeals have had some of both sorts of situations.

You have some in which there is no original wrongful taking, like someone going to a record store and buying a record and manufacturing cassettes. Then you have cases like this one and like many of the motion picture cases, in which there has been an original stealing of a tangible object.

QUESTION: Well, I understand there are two kinds of cases, but as I understand the Government's position the answer is the same for both kinds of cases.

MS. CORWIN: The answer is the same, but I think that if you have any doubt about the second point it is at least clear that we ought to prevail on facts of the sort we have in this case.

Now, as to this question of whether the evidence on this point is properly in the case, I note that in the trial court Mr. Abzug put on live testimony on this very point. His attempt was to show that his client did not know that these materials had an illicit origin.

I don't think he succeeded and I think the general verdict of the court against him establishes that he did not prevail on that point. I think it's too late for him to say that that particular issue is not in the case.

QUESTION: Did the judge instruct the jury you had to prevail on that point?

MS. CORWIN: There was no jury in this case. There was a bench trial, and Petitioner stipulated to a general verdict, so we don't have findings, either.

QUESTION: May I just ask, supposing there were no copyrights on these materials, but they'd been patented, and that the Defendant knew they were patented and knew that they were stolen. The same set of facts; would the statute be violated?

MS. CORWIN: I guess I have a few reservations about your question, because I'm not sure this sort of material could be patented. But assuming --

QUESTION: Well, the process of making records. Say they were made in a fancy color or an unusual shape or something.

MS. CORWIN: You mean in the process of making the records there was a patent infringement.

QUESTION: There was a patented process for making records of this kind, which he found out about and deliberately infringed, and then shipped the product of his infringement in interstate commerce and made millions of dollars.

MS. CORWIN: I think that's somewhat different from the case we have here and I would have some reservations. But I see some similarities. I would just not want to say for sure that it's within the statute.

It seems to me that, for one thing, I don't know that we've ever tried to apply the statute to that situation, so I can't think of case law that would tell me how to analyze that. But I would also be concerned about differences in this case. I think we have a stronger case in that you have this precise duplication of the valuable component of the property, the Elvis Presley performance.

QUESTION: You have that in every patent infringement case, too. All you have to do is change the language of the indictment to substitute a different federal statute and it would read right on my hypothetical.

QUESTION: Well, let's put it another way. You have a man that violates a man's patent and he's absolutely guilty of stealing the man's patent, and he ships the stuff in interstate commerce. Would he violate the statute?

MS. CORWIN: I think it is possible he would, because there are similarities to this case.

QUESTION: Well, how would he violate this statute?

MS. CORWIN: Well, I'm not sure he would, but I'm suggesting that you may have some similarities to this case in that you have the idea of the patent, the expression of the idea that it's used to make something that shows up in the patent, that is described in the patent.

But I think the analogy to this case is if somebody took the patent, the piece of paper that has the patented instructions on it, and made a photostatic copy of that. I mean, that's essentially what was going on here.

QUESTION: That's not in our case.

MS. CORWIN: Well, I understand --

QUESTION: Our case is he took the patent and made a product.

MS. CORWIN: Right.

QUESTION: And he violated the patent and he's liable for that. And if he ships it across state lines does he violate this statute?

MS. CORWIN: I think there are similarities to this case, but I'm suggesting why I think your hypothetical is the harder one for us than the case we have here.

QUESTION: You're going to have to convince me of that.

(Laughter.)

MS. CORWIN: Well, I would just suggest that in the patent case, if you think that Congress was looking for a sameness in the property, some degree of sameness at the time property was taken and the time it was transported, then you may have a gut reaction that what we've got here is more same than what you've got in the patent case, just because you can perceive the same Elvis Presley performance from both tangible items.

I would have reservations about patent also in that I'm not sure that patent infringement is a criminal offense, and we might want to take a look at that when we got into questions of intent under the statute.

QUESTION: Well, how can that possibly make any difference to the meaning of this statute, which was enacted a long time ago? I mean, the criminal offense is transporting the stolen property. It doesn't matter whether it's also in violation of the patent law.

MS. CORWIN: Well, I understand that, but when you talk about stolen, converted or taken by fraud, I don't necessarily think that Congress meant to tie this into an antecedent crime when it used broad language like "converted or taken by fraud." You may have a question about whether someone acted with criminal in tent in the patent infringement. I would just have to think a little bit more about that angle of it as well.

QUESTION: Well, in each case he knows he's taking an idea that someone else developed and he knows the law prohibits it because there are patent laws out there just as there are copyright laws. I mean, it seems to me the elements of scienter are the same. You don't have to know it's a felony in order for it to be adequate intent.

MS. CORWIN: I think ultimately I would probably agree with you, but I would want to take a close look at the facts of the situation and perhaps what the person thought about when they were infringing the patent.

Now, I agree that there are similarities in the situation you suggest, and it may be that we would say that would be covered. But I think it's not as easy to see that as within the center of what Congress was concerned with as it is in the case you have here.

QUESTION: Well, you keep saying that, but you have to explain for me why this case is different than the patent case. If you say maybe in the case of the patent, why isn't it maybe here?

MS. CORWIN: Well, I think here you have some things that --

QUESTION: That's what I want to know, what they are.

MS. CORWIN: All right. I think, to begin with, I guess I would say it would be perfectly clear, as Just ice Rehnquist suggested, I think, that if this Petitioner had gone to RCA warehouses and taken thousands of Elvis Presley albums and taken those across state lines, I don't think anyone would question that he would fall within 2314.

QUESTION: That would have no connection with the copyright laws at all.

MS. CORWIN: Well, my suggestion --

QUESTION: He's just stolen some property and sent it across state lines.

MS. CORWIN: Well, that is so. But I don't think that what happens there is that much different from what happens here. And I think that if you are looking for some sort of sameness in the property that was taken and the property that was transported, we certainly have that here. You have the taking of the property and the extraction, the lifting of the valuable part of this property, and the transfer or transcription onto another physical object.

QUESTION: What if the property that was stolen out of the warehouse isn't copyrighted at all or patented. You just steal it, and then say they're uncopyrighted records, but you like the way it's done. And then you copy them. You don't ship the stolen stuff across state lines. You just copy them, send them across state lines.

I take it you would say that the Stolen Property Act covers it, just because you've got an identity between what you sent across state lines and what you stole?

MS. CORWIN: Well, in some sense, in the same way that you had that in the trade secret information cases.

QUESTION: Is that right? Wouldn't you say that the statute covers that in my example?

MS. CORWIN: The trade secret information?

QUESTION: No, no. Just in my example. You steal some records and they are not copyrighted. You duplicate them and send the duplicates across state lines. You would say they're covered?

MS. CORWIN: I would say they're covered, and I think we have several ways --

QUESTION: So your theory in this case has nothing to do with copyrights?

MS. CORWIN: Well, I think copyright infringement is one of the reasons we can regard these bootleg albums as having been stolen, converted or taken by fraud. But I think we have a couple of other ways that we can say they were stolen, converted or taken by fraud, and one of them is the original stealing of the tangible object and the lifting of the valuable component of that property.

Another is the tradition of state law protection both under common law and under California statute that protects against the unauthorized duplication of sound recordings. So I think we have several strings to our bow on that particular point.

QUESTION: Ms. Corwin, maybe you've answered this already, but to be clear, what if the Petitioner had purchased Elvis Presley records at the store and then, in violation of the Copyright Act, made pirated copies, so to speak, and shipped them across interstate lines?

MS. CORWIN: Our position would be that that would be a violation of Section 2314, that the unauthorized duplication in itself, even if you don't have the original taking of a tangible object, is sufficient to render these unauthorized duplicates stolen, converted or taken by fraud.

QUESTION: Would you take the same position if a copyrighted song were plagiarized and the plagiarized material was then sold across state lines?

MS. CORWIN: I think we probably would. But let me say first that I don't think we've ever brought a case in which you have had only that composition copyright infringement. All of the cases in which this issue has arisen have been cases involving unauthorized duplication, so that you have this precise lifting and reproduction of the sound information. And I don't know whether --

QUESTION: Well, in a sense you don't need to take that position, I guess, for this case, because you could have any stolen item not involving copyright at all under Justice White's example and reproduce it and ship it, and in your view it would be stolen?

MS. CORWIN: Well, so long as there was some tangible -- I mean, not tangible, but component that was transferred from one tangible object to the other. And that is why I invoke the trade secret information cases, because I think there you have the taking of the piece of paper, but the courts have recognized that what's valuable about the property taken is the trade secret information and not the piece of paper, and that for purposes of Section 2314 it's really immaterial that you transfer the information from one piece of paper to another by mechanical means.

Now, I think in the example of taking the record from the record store you do have, as I've suggested, a couple of ways in which that taking is wrongful. One is the violation of copyright. Another is this body of state law which has suggested that unauthorized duplication, which is the usual manner in which this comes up, is a form of theft or conversion. You have that both under common law and criminal statutes in California.

You have Congress, when it put the felony penalties for copyright infringement into Title 18, putting them into the stolen property chapter. And I think against that background it's reasonable to think that Congress would have regarded this sort of unauthorized duplicate as having been stolen, converted, or taken by fraud.

But I think at the very least, when you're looking at the facts of this case, when you do have the original taking of the tangible item, that the statute covers in that case.

QUESTION: May I ask another question on that point. We had the case argued earlier this term that involved acquisition of a copyrighted manuscript, then a magazine published excerpts of it and sent it across state lines.

And assuming that the copyright law protected the manuscript, as it might have, and assuming it was stolen, would the shipping of the magazines constitute a violation of the statute? They were in the form of a book review with big excerpts, and assume they violated the copyright law.

MS. CORWIN: I think, assuming you met the $5,000 limit -- and there may be some tricky points about valuation -- if I understand your hypothetical, would have this precise duplication of the information, the creation, being shipped across state lines. That sounds enough like what we've got here that I think it would be covered, assuming you established a copyright violation and property interests in this sort of thing, that's right.

Now, I think there may be some hang-up if any, in this statute about the question of whether you've got the same property that's being taken and transported. Let me just suggest that I think it's clear that Congress did not mean that there had to be some precise identity between what is taken and what is transported. I don't think we ought to get hung up on questions of format here.

QUESTION: You mean identity in a tangible sense?

MS. CORWIN: Identity -- yes, I guess tangible is the easiest way to think about it. And I might use a couple of tangible examples to mention that. If I go down the street and I go into the Smithsonian Institution and I take the Hope Diamond and carry it away and cut it into 50 different diamonds, and then I go across the state line into Virginia, I don't think anyone's going to question that I have come within Section 2314 even though what I'm carrying across state lines, the 50 small diamonds, looks very different and indeed has quite a different character from what I took from the Smithsonian.

And from the other angle, if I take ten pieces of gold jewelry and melt them down into a bar of gold bullion and take that across state lines, again I don't think anyone's going to question, even though the character and the appearance of the property is quite different.

QUESTION: Yes, but in each of those examples the physical property as embodied in each of the -- I mean, the property which you remove from the Smithsonian has been transported across the river into Virginia, albeit in a somewhat different form. I think you have another hurdle to get over when you talk about putting something on another record and that sort of thing.

MS. CORWIN: Well, it's true that the continuity in the examples I offered has been in a tangible property sense. You've got the same tangible property going throughout the whole sequence of events. But I submit that that is not significantly different when you recognize that what is valuable about the property in this case is not the iron oxide particles and the backing on the magnetic tape on the one hand, or the vinyl on the record on the other.

What people care about and the reason these master tapes were stolen is that they contain actual Elvis Presley performances, and the reason anyone is going to buy these bootlegged phono records is that they contain those very Elvis Presley performances.

QUESTION: So the duplication itself is an act of conversion?

MS. CORWIN: Certainly.

QUESTION: And each duplication contains in itself the property that makes it valuable.

MS. CORWIN: Well, I think that's right. And as I say, I don't think anyone would be interested in stealing the tapes or purchasing the records if you didn't have that very property embodied in the phono records. So I think that you --

QUESTION: So what you've stolen or converted is contained in that record?

MS. CORWIN: I think that's right, and California cases we've cited and the California criminal statute --

QUESTION: That would be true whether the tapes were stolen or lawfully acquired?

MS. CORWIN: I think that's right, and that is the second branch of our argument, that even if you didn't have this original taking of tangible property you would nevertheless have a wrongful taking in the sense of a conversion, both on the theory that you had a copyright infringement and on the theory that under state law there has been protection for this sort of -- against this sort of unauthorized duplication of sound recordings.

QUESTION: Am I correct that your position is that if the material were not copyrighted you wouldn't have any case?

MS. CORWIN: That's not so in the particular context of this case. We have a bit of an odd situation here in that, for example, the sound recordings prior to 1972 were not subject to copyright protection under federal laws. The compositions were. The sound recordings, Presley's performance fixed on a tape, were not.

But there is a body, a fairly strong body of case law under the common law and under the criminal statute in California, that would protect that non-copyrighted recording against unauthorized duplication. And the courts have regarded that as a form of theft statute or larceny statute.

QUESTION: What would you say about the situation where a person is employed to infiltrate some private office where there is copyrighted material and then, using a recording machine, reads it to the recording machine, dictates it, and then proceeds to carry it across state lines after it's transcribed? That's about what your friend suggested as an analogy here. What do you say about that?

MS. CORWIN: Well, I think you'd have to look at that situation carefully to see whether there had been some sort of theft or conversion within some established body of law.

QUESTION: Well, it's a trade secret.

MS. CORWIN: Yes.

QUESTION: So that there is clear conversion of a property right.

MS. CORWIN: Right. I think if you have a trade secret you do certainly have a stealing or conversion. Now, the problem may come when you try to figure out whether it is a good, ware or merchandise, and while I think that Congress spoke broadly about that, I still think you probably have some element of saleable nature or commercial nature.

The question is whether what you've got is in a form that fits within those words of the statute. I'm not sure that the example that Mr. Abzug gave about the person just putting this into his memory and walking across state lines is something that would fit into the statute, simply because I think "goods, wares and merchandise" suggests you have something outside of yourself, something you can have in a saleable form.

So I think his example may be a problem for us. if someone who has recorded and has this on some sort of tape that can be sold, then I would feel far more comfortable and say that is like the trade secret cases or not so far from that.

But we think at a bedrock minimum, when you have the situation like this, in which it's quite clear that you do have the original stealing or conversion of the master tapes and you have the lifting of what is most valuable from those tapes and placing it on new tangible items, that that comes within the statute.

I think it would be a hypertechnical reading of the statute to say that that, that clever technological trick of transcribing the information from one item to another, somehow lifts you out of Section 2314. We just don't think that when Congress enacted the statute it had in mind that people could by this act of transcription somehow get themselves out of reach of Section 2314.

Now, it's clear that when Congress amended the National Stolen Property Act in 1934 it was trying to get at all of the ways in which professional thieves were operating. They were trying to close the loopholes that had allowed these so-called gangsters to move stolen goods from one state to another, thereby escaping the reach of the local authorities.

In that connection, I think it's useful to return to the facts of this case. Petitioner was clearly aware of the illegal nature of what he was doing. He was aware, I think the record shows he knew about the illicit origin of these source materials. He knew that there had been payments to NBC, he knew that there had been payments to the radio recorder studio.

He also knew that the unauthorized duplication was in violation of the copyright owner's rights and the rights of people like RCA. And he was fully aware that these bootleg albums, these thousands of dollars worth of albums that he was transporting, embodied that valuable part of the information. What had been taken to begin with, the Elvis Presley performances, was precisely what was on those bootleg records.

With that knowledge and in connection with a significant commercial enterprise, Petitioner shipped these albums from one side of the country to the other, for the express purpose of escaping FBI surveillance in California. Now, that's not quite like escaping state law authorities, but I submit it comes fairly close, and I think that there's no question that the statute has always covered situations in which the antecedent offense, the antecedent stealing or conversion, has been a violation of a federal criminal statute. So I don't think that's a significant difference here.

Now, this sort of stealing or conversion and transportation of the large numbers of illegal duplicates is precisely what is causing some very significant financial damage to the entertainment industry, to the recording industry. As I've suggested, it is not really different in effect and process from someone who goes into the RCA warehouses and steals albums and takes those across state lines.

In light of Congress' broad purpose in enacting Section 2314, we think there's every reason to read that provision to cover Petitioner's interstate shipments.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Abzug?

REBUTTAL ARGUMENT OF MICHAEL D. ABZUG, ESQ., ON BEHALF OF PETITIONER

MR. ABZUG: I'd just like to make one very brief summary point. I think Mr. Justice Stevens' question to the Respondent, Respondent's counsel, focuses the Court's attention on the fact that the theft in this case is simply the unauthorized use of the copyright privileges. The case, as I said in my opening remarks, doesn't really have anything to do with whether or not he bribed anybody or got the originals by any unlawful means, other unlawful means.

Once you say that unauthorized use of a copyright is equivalent to a conversion, stealing or taking by fraud, you really have extended the borders of the National Stolen Property Act beyond the bounds of probably what Congress intended, including into areas traditionally reserved to civil penalties. For example Mr. Justice Marshall's example of patent infringement is one example.

You can think of another example, cited by Mr. Justice Stevens, where there might be a contract dispute between litigants where property is used, a manuscript is used in an unauthorized way and then shipped, copies of it are shipped across state boundaries. We submit that the unauthorized use of the copyright privilege is analogous to these issues that are raised by the Court, and that the statute is not clearly designed to treat those issues, and that therefore the Petitioner's conduct should not be punishable under the National Stolen Property Act.

Thank you.

CHIEF JUSTICE BURGER: Very well. Thank you, counsel. The case is submitted.

(Whereupon, at 10:57 a.m., the argument in the above-entitled was submitted.)