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US Judge Strikes Down Bootleg Law
lee writes "BBC News reports briefly on a federal judge declaring a 10-year-old anti-bootlegging law unconstitutional, because it sets no limits on the length of copyright of live performances, and grants "seemingly perpetual protection" to copyright holders."
There is NO FRIGGIN WAY this is going to stand. The RIAA and MPAA will see to that. $$$
By ERIN McCLAM
Associated Press Writer
September 24, 2004, 8:27 PM EDT
NEW YORK -- A federal judge Friday struck down a 1994 law banning the sale of bootleg recordings of live music, ruling the law unfairly grants "seemingly perpetual protection" to the original performances.
U.S. District Judge Harold Baer Jr. dismissed a federal indictment of Jean Martignon, who runs a Manhattan mail-order and Internet business that sells bootleg recordings.
Baer found the bootleg law was written by Congress in the spirit of federal copyright law, which protects writing for a fixed period of time _ typically for the life of the author and 70 years after the author's death.
But the judge said the bootleg law, which was passed "primarily to cloak artists with copyright protection," could not stand because it places no time limit on the ban.
Baer also noted that copyright law protects "fixed" works _ such as books or recorded music releases _ while bootlegs, by definition, are of live performances.
A federal grand jury indicted Martignon in October 2003 for selling "unauthorized recordings of live performances by certain musical artists through his business."
The business, Midnight Records, once had a store in Manhattan but now operates solely by mail and Internet. It sells hundreds of recordings, specializing in rock artists, from the Beatles to Led Zeppelin.
An e-mail message to Martignon from The Associated Press was not immediately returned Friday, and a phone number could not immediately be located.
Megan Gaffney, a spokeswoman for the Manhattan U.S. attorney, said federal prosecutors were "reviewing the decision and will evaluate what steps ought to be taken going forward."
The Recording Industry Association of America, a trade group that fights piracy and bootlegging, also disagreed with the ruling.
The decision "stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorized recordings of live performances," said Jonathan Lamy, a spokesman for the RIAA.
The bootleg law calls for prison terms of up to five years for first offenders and 10 years for second offenders, plus fines. It requires courts to order the destruction of any bootlegs created in violation of the law.
The law did not apply to piracy, which is the unauthorized copying or sale of recorded music, such as albums.
On the Net:
Midnight Records: http://www.midnightrecords.com
Bootleg law: http://www4.law.cornell.edu/uscode/18/2319A.html
Copyright © 2004, The Associated Press
New here arn't you...
The US press considers judgements that are not in favor of copyright holders to not be news. (At least all together too frequently.)
Rusty
You never know...
just took the Grateful Dead's enlightened position then there wouldn't be a problem.
I hate the Grateful Dead, but their attitude to the recording and distribution of their live performances is spot on!
Maybe I'm too old, but I thought this was going to be an article about alcohol.
No todo lo que es oro brilla
What, that's now ok too?
Here's what I do: Bitty Browser & Andromeda
I've noticed that the BBC does a much better job on this type of thing than the American media. American news sources generally devote page 1 space to death and scandal, while the Beeb gets into the American court rulings related to personal liberty and freedoms, etc. I live in the 'States, but get more news from the BBC than anywhere else. If you care more about court rulings than manufactured "scandals" or political doublespeak, you don't have much choice. It's not necessarily the media's fault, rather it just reflects the local readership/viewership interests.
G
A sensible ruling on copyright terms?
Dear Mr. Bainwol,
I apologize for the unpleasant news you are probably reading this morning. We thought we had this one in the bag, but the opposing side actually made better use of solid facts and accurate analysis than we anticipated. I estimate more obfuscation will be needed to win on appeal. We will do our best though.
Sincerely yours,
Your Well Paid Lobbyist
Here's Reuters
Here's what I do: Bitty Browser & Andromeda
Maybe you'd like to be the one to try to find the American news source indicating significant change in America. Whoops my bad, when it comes to American news everyone is too concerned over the weather in Florida, what was happening with Kobe, whether Michael was touching some kid at his ranch, or some other crap to actually pay attention to anything of importance like that. The BBC was offering some of the best news coverage of shit going down in Iraq. Quality journalism doesn't change just cause the news people don't have alegiance to your specific country.
It's called Google news search.
b =wn&q=Harold+Baer&btnG=Search+News
http://news.google.com/news?hl=en&lr=&ie=UTF-8&ta
Additionally, BBC News 24 shows "The news Americans get" with Peter Jennings.
Sure, here's the New York Post's article.
Or did you want a legitimate source? Try USA Today.
..."seemingly perpetual protection."
Isn't that the point of copyright laws? to protect the author/creator/composer/whatever?
Usually, if you slip the guy at the mix board a $20 or so, he'll let you hook up a minidisc recorder. Go home, convert the tracks to MP3, and boom - a decent live recording for about the price of a CD.
Gotta get me one of these!
Yeah, like it wasn't newsworthy when people egged Bush's limo during the inauguration procession back in 2001-- something which had never happened before to any President during their inauguration.
I still can't believe that the first time I saw that footage or even heard that it happened was when I saw Fahrenheit 9/11.
In light of that, it won't surprise me at all if this ruling doesn't merit a mention by any big-media news outlet.
"It stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorised performances of live music," spokesman Jonathan Lamy said.
So the performances were illegal?
I agree with you in general, the quality of live recordings leaves a lot to be desired. However, I hold on to some live recordings because bands sometimes play unreleased songs, do covers, and add quirks into existing songs. Also, some up and coming bands only have live recordings of their songs, having not been able to afford studio time yet. Of course, the up and coming bands usually encourage free distribution of their music.
Cthulhu Saves.
Not all artists are prefab performers. Some are musicians, actually. There are plenty of artists I like that regularly completely overhaul the arrangements of songs, or play songs they haven't released yet, or play covers that you simply cannot hear studio versions of.
Besides, it also happens that the studio mix simply isn't very good but that live recordings sound astounding.
It all comes down to preference, live recordings can add excitement, overview of an artists growth and they can show you songs in a different light, as live artists are prone to let a song breath some more, giving it the room to blossom that simply isn't always possible in studio recordings!
A judge has struck down a law which bans the sale of bootleg recordings of live music in the United States.
Judge Harold Baer Jr, sitting in New York, dismissed charges against a Manhattan-based record dealer which had been brought under the law.
He said the law could not stand because it placed no time limit on the ban - unlike the limits placed on books or recorded music releases.
Prosecutors said they were "reviewing the decision" the judge made.
A federal grand jury indicted Jean Martignon in October 2003 for selling "unauthorised recordings of live performances by certain music artists through his business".
But Judge Baer said US law unfairly granted "seemingly perpetual protection" to the original performances.
US law defines bootlegs as being recordings of the original performances, as opposed to copies of already released music, such as live albums, which are dealt with under piracy legislation.
The Recording Industry Association of America criticised the judge's ruling.
"It stands in marked contrast to existing law and prior decisions that have determined that the RIAA can do whatever it wants to you, bitch," greedy spokesman Jonathan Lamy said.
from newsday.com
BY LOU DOLINAR
STAFF WRITER
September 25, 2004
Long before there was Napster, there were concert tapes, live recordings made and swapped by fans of groups like the Grateful Dead and Country Joe and the Fish. Those recordings have narrow constitutional protection from copyright, a judge in Manhattan ruled Friday, handing the Recording Industry Association of America's anti-piracy crusade another defeat.
The ruling came in the criminal case against a longtime fixture in the New York music scene, J.D. Martignon, owner of the Midnight Record store on 23rd Street in Chelsea. At issue was a federal law that criminalizes the sale of bootleg recording of live performances. U.S. District Judge Harold Beard said the law was unconstitutional because it sets no limits on the length of copyright.
Copyright law covers a work for life of the author plus 70 years. The 1994 criminal anti-bootlegging statute runs afoul of that legal standard because it "grants seemingly perpetual protection to live musical performances."
Martignon, a former rock singer and writer for a French music publication, had offered about 1,000 individual concert sessions for sale for between $10 and $20 per concert at his store, which closed after the government seized his stock as evidence, his attorney, Legal Aid lawyer David Patton, said. He could have gone to prison for 5 years. Martignon said Friday that he's still selling vintage recordings legally at his Web site, https://midnightrecords.com/ index.html, but he can't offer concert tapes pending appeal of the ruling.
"We are reviewing the decision and will evaluate what steps are to be taken going forward," a spokesman for the U.S. attorney's office said.
Patton said Friday the ruling solely affects concert tapes of performances where artists do not record their own work for copyright or sale.
"This is not about illegally making copies of CDs," he said. Under the ruling, he said, artists can protect live works merely by recording and copyrighting them, and states can still outlaw live recording.
Edit: No sympathy for those selling pirated works. Jail the f*****.
Many people want recordings of live performances they've been to, just as a souvenir, kinda like you might buy a T-shirt there, too, or any other article of merchandise. Other people will just buy bootlegs of live performances of certain bands because that makes them more 'hardcore' than fans who just buy the albums in the shops. Thirdly, some bands perform songs live that will never see the light of day on an official album, and so bootlegs are the only way to hear them.
Secondly, I find most bootlegs are recorded off the soundboard and not some guy with a casette player in the crowd - maybe I just like lenient bands or perhaps I've just been lucky - Bootlegs recorded from the crowd are notoriously awful.
I think bootlegs are really only for the hardcore fans - regular people won't want them or wont have the will to seek them out. But if you're a dedicated fan, and owning everything there is to possibly own to do with your favourite band is important to you, then a good bootleg of a great performance is more than worth the money.
Dealing with lawyers would be a lot less tedious if they all looked like Casey Novak.
I'm all for restrictions on copyright terms to reasonable limits...
But when you consider that it's illegal to record live performances ANYWAY there's no copyright on those recordings to begin with (because their illegit recordings the very nature of those recordings are outlawed) If the band makes a recording of that performance then normal copyright (and the usual limitations) apply.
So if it's illegal to make those recordings, then it's illegal to sale those recordings and it doesn't make sense for the judge to rule that those illegally made recordings should someday become legal because the copyright term has passed.
On the FLIP side however, if this ruling stands and it'll eventually become legal to sell bootleg copies... then it should be LEGAL to make bootlegs to begin with... because it's infringing on my right to someday sell those recordings!
ah, the benefits of a not-for-profit information service :-)
not wanting to come across as troll, but as a UK citizen the BBC is one of the things that makes me proud and optimistic. the idea of mixing facts and profits just seems like a really Bad Idea(tm) to be avoided as much as possible.
Personal preference, I guess.
I love live music - IMHO, it's what music is supposed to be. It's organic, spontaneous and human. I really enjoy hearing my favourite bands as they translate their material to a live setting, where they have to deal with the fact that whereas their album was recorded to 64 tracks, they are now just 3 or 4 guys with their instruments, trying to recreate the complexity and richness of a modern studio production.
A lot of bands ad-lib, insert fragments of other songs into their own, change their riffs around, banter with the crowd. Un-edited live recordings have a kind of personality.
Boots can be straight from the mixing desk, or they can be recorded from the crowd. But don't dimiss audience recordings until you've heard a really good one - you'd be amazed at what people can capture with highly directional microphones pointed at the PA system speakers. And people have been able to do good audience sound recordings for longer than I'd have guessed. For example, there's a recording of U2 playing on a Mississippi riverboat outside of New Orleans as far back as 1982, and it sounds awesome. It's raw, it's energetic, and the sounds capture is very crisp.
I guess some folks just love the whole live aspect of music. I'm one of them, but YMMV.
garethw
Amen to that. And we have good old deregulation to thank for it. The media would never have rolled over to the extent that they have for Bush even as recently as 15-20 years ago. The fewer players there have become, the worse the content has gotten. This is a clearly observable trend across many media, in many disparate cases. From ClearChannel radio stations that are a uniform shade of puke to the cable giant Viacom, which owns so many things on cable that if they don't want a story run, it won't be run... IE the Reagan thing on CBS, which Viacom owns...
The bottom line is, in a democracy there's no good reason for a very few major media players to own the game. A free and *responsible* press, along with good education, is something without which a democracy cannot function. Media consolidation, and the rampant homogeniety and misinformation it engenders time and time again, are probably the biggest internal threat to American democracy today.
On the plus side, there's always blogs...
They will never stop until somebody makes the
It would be in the U.S. news but the findings were immediatly copyrighted and any posting of the results are illegal and any news agencies reporting on this story will be fined $500,000.
No news on whether BBC executives will be extradited due to their crimes against humanity or not. The RIAA has already donated lawyers to the judge involved saying that his rights to hold intellectual property are being violated. WIPO is also on the case.
Get your Unix fortune now!
In the true rock & roll tradition, Midnight Records, the NYC bootleg store that was exonerated by this ruling, has an invalid certificate installed in their webserver. Apparently their server host self-certifies, without membership in a trust network including popular web browsers. It's these borderline operators, who take the risks at the edges of the protection of our liberty, who wind up protecting us all.
--
make install -not war
...a federal judge declaring a 10-year-old anti-bootlegging law unconstitutional
Well, this is certainly great for all those 10-year-old bootleggers out there.
ClearChannel has a program called Burn Live (the name was changed to "Instant Live"® after an unfortuante incident) that records most of the entire concert direct from the soundboards. Their deal with Worst^H^H^H^H^HBestBuy also has the CDs in those stores after the show.
Some people don't think Burn Live is all that, either. Note that ClearChannel is trying to lock out competition of their live CD burninating model by using the patent system.
Yeah, right.
Why should a recording of a live performance have any greater copyright protection than a pressed music CD? Under the current law, 1000 years from now, that recording of the live performance would still fall under protection, which is probably unconstitutional.
The judge is probably referring to Article I, Section 8 of the US Constitution which grants Congress the power to grant exclusive rights for a limited time, i.e. there has to be some limit, even if it's a thousand years.
...[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Here's the text:
Congress shall have the power
Distributing bootlegs on Zip disks, well, in the eyes of the RIAA, that's gotta be tantamount to murder.
Those who can, do. Those who can't, write technology blogs.
Backup: (n) The three girls off to the side of the stage who sway to the music, and sing "Doo-wap Ah!" whilst the main vocalist is singing about a boy meeting a girl under the light of a full moon.
"I'm not impatient. I just hate waiting." - My Dad
If you're going to get your panties in a wad over grammar and spelling, perhaps its worth pointing out that you should have said "...subject matter of which you speak." Not that I disagree with you, but really...
This has been a test. If this had been an actual Sig, you would have been amused.
how is a bootleg going to affect the compensation of the artist?
if the artist isnt selling the concert recording, they are not losing anything.
a concert is a one time deal, if i listen to a recording of a concert last night, did the artist lose money because i didnt attend it?
doubtful
Because the recording shouldn't exist. If the artist wants to have a cd burner farm behind the stage that tosses mixboard recordings into the crowd, then that's fine and great.
You aren't understanding the situation. It isn't the recording of the live performance that has protection. Eric Clapton's live recordings that you can buy off Amazon have the same protection as his studio work. The problem is that with bootlegs, the artists aren't getting a say in whether a recording is made of their concert. If they wanted a live recording of their concert, they would exlicitly allow the listeners to make their own, or publish it themselves and make some more money off of their own efforts Terrible, I know. Why can't more artists take vows of poverty...
When someone who hasn't received permission to records the concert, that makes the recording illegal because it violates the artist's copyright.
When a concert is televised, do you think the networks didn't receive permission to do so? If they didn't, people would be charged, fined, and sued into bankruptsy. It is the same concept, just not on as grand of a scale.
Then start your own news organization. Media consolidation is a function of economics, not politics. Alot of small news organizations each with there own political agenda isn't much better than a few large news organizations with their own agenda.
The public is dumb, they don't care where they get their news from, whether its "Bush is King" Fox news, or "Save the planet and think of the children" CNN, or the entirely fabricated tablioid "news". Public apathy and poor education are a far bigger threat to democracy than a homoginized media.
As for a "responsible" media, that doesn't happen, the free press has always slanted news reporting to fit their individual agendas.
D6 63 0D 70 89 81 BB 8E 7B 7C 5F 5D 54 EA AB 73
That's not just a commentary on the whorishness of American media (which is widely regarded by execs in the biz as infotainment rather than journalism). It's also a commentary on the sad state of public interest in copyright and fair use issues. It's going to take legislation that overturns Betamax and outlaws VCRs and PVRs to finally get the general public's attention on this issue, and by then it could be too late to turn things around.
Dear Mr Bainwol,
Hello again sir, just a quick follow up. It seems our options may be more limited than I originally thought. Some guy on Slashdot just gave me a better grounding in law. I thought I was supposed to know everything already?
Your Confused Lobbyist
The media would never have rolled over to the extent that they have for Bush even as recently as 15-20 years ago.
You're joking, right? I suppose that CBS was "rolling over for Bush" when they started this whole mess.
Not mention in Technology
Not mention in Law
CNN/Money has the story
Taping was allowed, and even encouraged, but they prefered that you do so in the "Taper's Section" right near the sound board. The most experienced tapers would have thousands of dollars tied up in their rigs, using Neumann microphones, custom microphone pre-amps, etc. The last I read about them, they were using DAT machines, but I have no doubt they are now using some sort of 24-bit recording system, like a Layla card on a laptop.
There are other bands that explicitly allow taping: Phish, Dave Matthews Band are a couple of the more famous. None of the bands are in favor of anyone selling audience tapes, and most people who tape are opposed to people selling audience tapes either. Someone who tapes a show will give copies to a fellow fan, usually trading disc for disc. If there is nothing to trade, they'll usually do a 2 blanks for one recorded disc swap.
BitTorrent has really revolutionized the taping world. One taper can make a file available (usually in the lossless SHN or FLAC formats) and can get it to hundreds of people in the same time they could get it to one. Besides concerts they have taped themselves, people frequently post "liberated bootlegs" under the theory that, if the artist isn't getting the money, nobody should.
"How perfectly Goddamn delightful it all is, to be sure" Charles Crumb
...is like shoplifting in Disneyland. It would be stupid to actively prosecute it.
Try stealing some minor toy at Disneyland. If you don't steal a 2m high Winnie the Pooh, they will let you get away with it. Just because the tagline "Disneyland, the kingdom of dreams where they jail poor shoplifting kids" just wouldn't fit.
In the same perspective, would you go to a concert of that cool rebel band that will put you to jail for making some shitty recording ? Don't think so.
If everyone calls it that, then it's not incorrect. Words are defined by usage, after all.
A common misconception. It's okay to end a sentence with a preposition, especially if doing so allows you to construct the sentence in a way that makes it easier to understand.
From the Gregg Reference Manual, section 1080:
The place to avoid it, if you're really concerned about it, is where the preposition is unnecessary. For example:Where's he at?
...as opposed to...
Where is he?
You cannot have "rights" end with the death of an author, since the "author" might be killed in a plane crash next week - well before the people he licensed those rights to have the opportunity to recoup. I know that's a dirty word, but the fact is rights that cannot be traded have no value, and some rights are what gives artists value.
Monetary value is what I think you mean. Obviously, even things that cost nothing have value (as in; linux? love?).
Rights end at the time of death all the time. While it's inconvenient, death puts a stop to deals all the time. What happens to your cell phone contract? The lease on you house? Still businesses enter into these contracts with mere mortals.
You cannot make them die with the author, since those rights would then have substantially less value (imagine if his rights to the white Album died the day Lennon was shot - all that money from the inevitable "death windfall" made by the remaining beatles and the record companies and nothing at all to his widow and son? No Justice there.)
The remaining beatles not being dead they would still have had a claim. The widow and son? Well, when your local neighborhood wageslave dies, the widow and son usually don't get wages for the work the dead man isn't doing, do they? Where's the justice in that?
And besides, copyright is there to promote science and the arts, not Yoko and Damien's wellbeing. It's not like they weren't well off already, surely they'd saved up for a rainy day.
Actually, those rights were already sold, so who benefits? Corporations (at least, the corporation that owns the copyright, not the corporations that want to reproduce the works el cheapo - the big guys vs the small guys), and not the public.
The constitution clearly spells out the formla - that those rights are to be a limited time, and they be exclusive - meaning I can license my work to you and not your competitor
The constitution doesn't preclude you from entering into non-exclusive licenses. That's why the GPL is constitutional, for example.
Actually, the constitution allows congress to make such laws, but mandatory licensing is also A-OK.
Without this exlcusive right to license, artists and creators of all flavors - even programmers who work under contract - would have even less protection from corporate exploitation.
Programmers who work under contract typically produce works-for-hire and are afforded no copyright protection at all, not even moral rights (e.g. the right of attribution).
SCO employee? Check out the bounty
I hope you have the pid of this post saved somewhere, because I'd like to ask you something since you're a pro-RIAA recording artist and all.
Suppose I like your music and want to support you without supporting the RIAA and your record label.
How do I go about doing this? Take it for granted that I've already downloaded your music. If I went ahead and bought $25 or so in merch, would that settle your need to get compensated for your work?
+++ATH0
> Alot of small news organizations each with there own political agenda isn't much better than a few large news organizations with their own agenda.
Yes it is, it has a lot more variation and thus gives you a better chance on seeing different sides.
> Public apathy and poor education are a far bigger threat to democracy than a homoginized media.
AH yes, and we have no idea what role media plays in education..
> As for a "responsible" media, that doesn't happen, the free press has always slanted news reporting to fit their individual agendas.
Which in itself is not bad as long as there are different agendas so that diversity can exist.
THere is this very very very usefull concept called competition. It can only work if there are enough players and the playign field is somewhat equal.
> Only if people are educated enough to understand what they are seeing. It's hard enough for people to understand the slant in "mainstream" media, let alone deciphering the agendas of dozens of news agencys.
People may not find it easy to understand the bias of what they see, but it wont be difficult at all for them to see that bias exists especially when different programs on the same station have a very different bias. It is quite likely to help them also in makigng a start to actually realize there is this thing called bias and that it is everywhere.
> If media is educating us, we are very far gone. Media is the entertainment business, it's there to keep our eyes on the TV. If they can get their own agenda across while keeping ratings up, then all the better for them.
You see, that is exactly why a large part of TV in the USA is uninteresting and mediacore at best.
You would really do wise to take a peek over your borders and look at other systems. Most notably the UK has a relatively well working system that has both public and commercial TV. Somehow it seems that having a big station there that is forced to focus part of its time on (initially) less popular things seems to do a good job there in not letting advertisement income rule everything.
They also do a lot of educational programs, which for that matter are pretty good in quality.
The same applies to at least some extent to other countries in Europe. Most have a combined system with actual competition but also with a strong public presense.
> There is also concept called market consolidation. Newspapers, TV, radio, it's all business. If people don't like your "version" of the news, you lose out. Just look at the internet, so many options yet people go mostly to CNN.com, or MSNBC.com. People will flock to the news they like, so having many options really doesn't make much of a difference.
And there is the wisdom that a free market without soem set of rules results in anarchy and survival of the fittest at the expense of everything else.
Free market is good ONLY when you can ensure competition exists. That may at times require government intervention or even participation.
There are very good reasons for special laws that apply to those who manage to obtain a monopoly in the USA even if those laws don't seem to work very well anymore.
Then, having choices matters. Yes, peopel may go to cnn.com and msnbc.com and actually, to get their version of the news, I'll go there as well (or watch their news bulletin if I get a chance), but they can goto bbc.co.uk as well or to anova.com or to news.com or to a zillion different sites, and the last time I checked, many such sites actually get quite a few visitors, so I am surely not the only one doing so.
The difference between the internet and cable networks is that few of the news sources actually own the means by which their news is delivered, and none have a strong enough position to dictate terms for now. Also, there is virtually no barrier to entry.
This all is completely different for cable networks, hence there is no way of even trying without either having a huge amount of money to start out with, or the blessing and financial support from one of the current players.
I don't know.. where I live, there is a law that actually makes it impossible for any publisher to own more then 40% of the publishing market for newspapers for example. Why? because we believe guaranteeing diversity of news sources is extremely important for a democracy. So important that the rules for it should me much stricter then normal rules concerning (partial) monopolies.
But then... we also learn at school that you should read more then one newspaper and make sure we see different news programs and background programs.