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Court Strikes Down Anti bootlegging Statute
A recent judgment of the US District Court has left musicians, prosecutors and legislators scratching their heads. A ten-year-old law prohibiting bootleg copying has been struck down as unconstitutional. From within the confines of constitutional authority, District Judge Harold Baer Jr. used constitutional principles to conclude that if legislators only had the authority to prohibit copying of recordings for the life of the artist plus 70 years, then they could not prohibit the copying of bootlegs indefinitely. This logic is compelling. Underpinning his reasoning, however, is the premise that the anti-bootlegging statute is a Copyright-like statute that falls within the Copyright Clause of the Constitution. This assumption deserves careful scrutiny.
The US government enacted the anti-bootlegging statute in 1994 to fulfill its obligations under the WTO Agreement on Trade Related Aspects of Intellectual Property Rights. The statute created both criminal and civil liability for recording sounds or sounds and images of live musical performances without the consent of the artist and then distributing, selling or transferring that recording for commercial advantage or financial gain. The statute does not capture the copying of previously recorded live music, only the recording of live performances.
Jean Martignon, the proprietor of a Manhattan based mail-order Internet business offering bootleg recordings of live music, was charged under this legislation. Martignon responded to the criminal charges by arguing that the law was unconstitutional. He relied on the Copyright Clause of the US Constitution. This clause provides the Constitutional authority that enables legislators to protect an artist's right to his or her "writings" for a limited period of time - the life of the author plus 70 years. By contrast, the anti-bootlegging statute was not time limited and purported to grant the artist perpetual protection. The court held that the overbreadth could not be saved under another constitutional grant of authority, such as the Commerce Clause. As the statute purports to grant Copyright-like protection, the court held that the legislators were bound by the limitations in the Copyright Clause.
The recording industry is appreciably disgruntled with the ruling, suggesting that it departs from prior decisions on the constitutionality of the anti-bootlegging statute. In his reasons, however, District Judge Baer asserts that only one other decision has considered a constitutional challenge to the statute, and that court only heard arguments pertaining to the scope of the Copyright Clause's definition of "writings". Further, Judge Baer notes that the previous decision did not consider the statute's perpetual application, and that the court stated that had it heard such arguments it might have come to a different conclusion (i.e., the same one as Judge Baer) regarding the constitutionality of the statute.
Notwithstanding his reasons, how are Judge Baer's assumptions? Is it accurate to characterize the anti-bootlegging statute as a Copyright-like statute? The rights of artists to profit from their "writing" continue to be governed by copyright. The anti-bootlegging statute simply ensured that the distribution of musical works of an artist remained in the artist's control.
Federal prosecutors are reviewing the decision. Watch for an appeal.
For a copy of the decision, visit: