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Anderson v. Nidorf

filed: June 7, 1994.

CLETUS ROBERT ANDERSON, PETITIONER-APPELLANT,
v.
BARRY J. NIDORF, CHIEF PROBATION OFFICER; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-92-03515-AWT. A. Wallace Tashima, District Judge, Presiding. Original Opinion Reported at:,.

Before: Thomas Tang, William C. Canby, Jr., and Robert R. Beezer, Circuit Judges.

Author: Per Curiam

AMENDED OPINION AND ORDER

Per Curiam:

OVERVIEW

Cletus Robert Anderson appeals the district court's denial of his habeas corpus petition challenging his conviction under California Penal Code § 653w for failure to disclose the origin of a sound recording. Anderson claims that this California statute is preempted by federal copyright laws and violates the First Amendment. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

At a flea market in May of 1990, a Los Angeles County Deputy Sheriff approached Cletus Anderson, who was selling almost 5,000 tapes which appeared to be pirated.*fn1 When Anderson could not produce any documentation demonstrating the origin or manufacturer of the tapes, he was arrested for failure to disclose the origin of a sound recording, in violation of California Penal Code § 653w.*fn2

Anderson waived a jury trial and was convicted by the state court on November 20, 1990. He was sentenced to 180 days in county jail and five years probation. A California Court of Appeals affirmed Anderson's conviction on appeal, rejecting his arguments that the California statute was preempted by federal copyright laws and that his conviction violated the First Amendment. People v. Anderson, 235 Cal. App. 3d 586, 286 Cal. Rptr. 734 (Cal. App. 1991). The California Supreme Court denied review on January 22, 1992. Anderson then filed a petition for habeas corpus in federal district court, but accepted a dismissal without prejudice in order to petition the California courts for post-conviction relief. After the California Supreme Court denied Anderson's state petition for habeas corpus on May 27, 1992, Anderson filed a second petition in federal district court. The court adopted the magistrate Judge's Report and Recommendation denying Anderson's petition for habeas corpus.

Discussion

A district court's decision on a petition for writ of habeas corpus is reviewed de novo. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987).

I. Is California Penal Code § 653w preempted by federal copyright laws?

The federal copyright laws preempt state-created "legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright." 17 U.S.C. § 301(a). We have held:

Section 301(a) preempts a state-created right if that right "may be abridged by an act which, in and of itself, would infringe one of the exclusive rights [listed in ยง 106]." But if violation of the state right is "predicated upon an act incorporating ...


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