The U.S. Second Circuit Court of Appeals recently ruled that Congress, pursuant to the U.S. federal anti-bootlegging statute (18 U.S.C. § 2319A) (the “Act”), has the power to outlaw “bootlegging”, a term used to describe the act of illegally selling goods. This decision overturned an earlier trial court decision that held that the Act violated Article 1, Section 8, Clause 8 of the U.S. Constitution (otherwise referred to as the “Copyright Clause”) since it appeared to provide for an indeterminate term of copyright protection over live performances. The Copyright Clause requires that authors’ exclusive rights to their works be secured for only a limited time (currently 70 years from the date of an author’s death under the U.S. Copyright Act). The Court of Appeals, however, upheld the Act under Article 1, Section 8, Clause 3 of the U.S. Constitution which gives Congress the power to regulate commerce among the states. While the Court of Appeals’ decision reopens the possibility of charges being laid under the Act, the statute may be open to further challenges, including whether it violates the constitutional right to Freedom of Expression.
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