Colbert Helps Save World From Polka Pirates

from the those-darn-pirates dept

A few of you have sent in the fact that the Colbert Report recently did a fun segment about a guy arrested for selling polka DVDs:

The Colbert Report Mon – Thurs 11:30pm / 10:30c
Nailed ‘Em – Polka Piracy
Colbert Report Full Episodes 2010 Election Fox News

For all the talk we hear about how DVD counterfeiters are connected to “organized crime” and “terrorists,” a lot of the times it’s really situations like this one, involving a guy who did a public access TV show about polka. Someone called him to see if they could buy some DVDs of the show, so he made a few DVDs and sold them. But the whole thing was a setup, and the next morning he was arrested. The whole thing shows what a joke some of these claims really are.

Separately, I do find it amusing to see folks like Colbert mock the overreaction to things like copyright infringement — considering that his employer, Viacom, is so aggressive on spreading the myth that DVD counterfeiting is really about supporting terrorism and organized crime.

Update: Good discussion in the comments about what the specific charges were in this case. Apparently, the guy used government equipment to make the recording and DVDs, so the local government felt it was theirs — and they sold their own DVDs, which this guy’s DVDs undercut. He was charged with using city property for “personal gain.” Oddly, there’s an “embezzlement” charge as a part of this… More details here.

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Comments on “Colbert Helps Save World From Polka Pirates”

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Anonymous Coward says:

As one who has practiced copyright law for many, many years, something seems out of whack here.

Copyright is a creature of federal law, having both civil and criminal components. As such, federal preemption over this area of the law to ensure national uniformity precludes state authorities from enforcing federal copyright law. Except in very limited instances rapidly disapearing from the legal landscape, civil lawsuits under state law are theoretically possible, but to my knowledge have not been pursued for several decades, if ever.

Federal authorities do not pursue civil infringments. That is a matter between civil litigants. Federal authorities do pursue criminal infringements, but even then there are thresholds that must be met before a criminal indictment can issue.

Here we appear to have a state enforcing an allegedly criminal act over which it holds no power or authority to do so. Moreover, the facts seem to indicate that even the federal authorities would be unable to secure an indictment because the thresholds are not even close to being met.

Like I said, something is out of whack and the charges should, if the facts as related in the story are correct, be dismissed immediately. Simply put, no crime appears to have been committed.

wallow-T says:

civil lawsuits under state law

To Anonymous-Coward-at-Law above: I know of at least one recent civil copyright action under state law. EMI sued the budget classical label Naxos over historical recordings from the 1930s. According to this article, there was no federal protection for these recordings, but EMI could rely on a state common-law copyright extending to 2067.

“EMI, Naxos Settle Suit.” Story is from 2006.

Here’s a pre-Colbert reprinting of a newspaper story about the incident:

Scote (profile) says:

Re: It is an embezzlement charge

Everybody should read wallow-T’s link.

Fred-Merle produces the Polka Party show for the city cable system. He used city equipment to run of 11 copies and sell them to the undercover officer. The city normally sells copies of videos for $20. So the city considers itself out $220.

It isn’t clear from the link if Fred-Merle’s show is work for hire if it is his property, so the IP questions aren’t clear. And there is the issue of the charge being “one
misdemeanor count of copying audiovisual recordings for gain and embezzlement” which sounds like a bizarre charge, a weird combination of a substitute for copyright law combined with an embezzlement law”–which is, it sounds like a law made up just to prosecute him. So, I’m not sure I trust the reporting, or the city.

wallow-T says:

Re: Re: It is an embezzlement charge

@Scote wrote: “The city normally sells copies of videos for $20.” These are videos from the community-access channel.

What are the odds that the city has all the necessary licenses, for both songwriting and performance, for the polka music included in the Polka Party cable TV show? I suspect that the city itself may have some copyright liability here when they produce DVDs (fixed copies) of the TV show, unless their legal department is awfully thorough.

Terry Hart (profile) says:

The real story is somewhat different than how it appeared on Colbert.

A well-known Warren TV producer has been arraigned on several charges for allegedly using city equipment to record polka parties and then making a profit by selling the recordings

DeChausse, who goes by Fred Merle on-air, was charged with felony and misdemeanor counts of copying audiovisual recordings for gain and embezzlement.


Re: Waynes Polka World

No. It really sounds like Wayne’s world but with a few twists.

It’s a middle aged guy instead of a teenager.
It’s polka instead of heavy metal.
The city of Aurora claims ownership over Waynes world.
Wayne is also a city employee.

I would have thought the music content of the program would cause more trouble than anything else. ASCAP or one of their friends would come down on him.

leetwanker (profile) says:

Re: Entrapment?

I thought the same thing. Welcome to our great, great police state, err, I meant nation!

Government as Corporations’ puppet is so out of control, once upon a time we stood up for ourselves – – and even each other when the issue was important enough. …First they came for the Jews and I didn’t stand up because I wasn’t a Jew, then they came for… Ya know?

We need to take the big bitch back, keep it out of our bedrooms, out of our heads, out of our sex lives, close all the tax loopholes that big business benefit from while average Joe doesn’t and ends up giving all his money up the ladder to make the rich richer. It’s a trickle UP economy people, why do you think you’re living paycheck to paycheck? The rich man’s money isn’t finding your pocket, is it? /end rant>

Montezuma (profile) says:


When law enforcement entices a person to commit a crime that they would not likely commit without the influence of law enforcement, that is entrapment. If this guy sold a DVD or two, law enforcement was contacted about the sell, then law enforcement performed a undercover operation to verify this claim, this would not be entrapment. It really depends on the event chronology.

If this guy had sold a copy of the video that he legally owned and law enforcement was told about it(which, most of us know that it is legal to sell property we own), then law enforcement enticed this guy to make copies of the DVDs to sell(copies that he was not legally allowed to do for resale), then that would be entrapment. I am interested in know exactly how law enforcement became aware of DVDs. Small town gossip?

Aside from the attempt at humor by Colbert, I really have a problem with this case. A judge has no legal authority to tell anyone that they cannot sell their own property(aside from a few, extremely narrow situation, of which this is not one). This sounds like the mayor of this town, and the law enforcement working in this town, are violating people’s rights.

Perhaps they fails at proper training and certification methods in this town and state. Either way, the people in that town need to oust that mayor.

Gene Cavanaugh (profile) says:

Selling polka DVDs

As an attorney, I would advise my client that, assuming that as well as the equipment, he used the client’s blank DVDs (cheap, but not free) he has an obligation to the public to include embezzlement (the value of the blank DVDs). If the court found the count trivial and threw it out, fine – but when all the facts are brought out, it might not be trivial.

The main thing is that he/she would be meeting his/her obligation to protect the public interest.

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