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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...
Maybe I'm too old, but I thought this was going to be an article about alcohol.
No todo lo que es oro brilla
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
It's the law that is found unconstitutional.
Just because the law is wrong doesn't mean the court endorses the crime. Take Miranda vs. Arizona . Even though the rapist is freed, and precedent is set, the court isn't saying it's okay to rape someone.
Get your Unix fortune now!
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?
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.
The point of copyright is to let the creator profit off of his/her work for a time, but not to keep the work out of the public domain perpetually.
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.
Perpetual protection is unconstitutional. Article 1, Clause 8, provides Congress with the power to "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."
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
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
Just for completeness....
Ernesto Miranda was not freed. He was re-tried (after being read his rights), convicted, and sentenced to 11 years in prison.
In one of the lesser-known ironies of the century, Miranda was also stabbed to death while on parole. His likely killer was released because he invoked his right to remain silent.
...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.
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
There is no law of nature that stops an idea from spreading from one person to another, even if the idea is in the form of a catchy tune or a long set of words that make up a novel. Copyright law is therefore a restriction of the people's freedom, and it's not in the spirit of the Constitution to restrict the people's freedom without giving them some benefit in return. The "limited time" concept is that benefit: by giving creators extra incentive to create, it says to the people, "Hold off spreading new ideas around for a little while, and there will be more of them for you to play with later." Without the second part of that sentence, the law is simply a restriction of freedom with very little public benefit to make up for it.
That's the theory, anyway. In my opinion current copyright law is already excessive in that a work created the day you're born will not be available to you to build upon until you're on your deathbed.
It is worth observing that the people who argue most strenuously for infinite copyright terms are very rarely the creators of copyrighted works -- they're the publishers of those works. Listen to what the actual artists say and you'll hear a different tune: artists realize that they stand on the shoulders of giants, and that everything they create is based on what's come before. Without that cultural heritage to freely draw upon, creators suffer just as much as everyone else.
Recording live performances is allowed in some cases. Not only with jam bands that have followed the Dead and Phish in their stance on live recording. Other bands and artists are cool with it too. They realize that, by allowing shows to be recorded, they are potentially increasing their fanbase, as well as increasing the number of people at a show. I've been to shows to tape, based solely on a recommendation to go see and tape their show.
Many bands are now allowing their live shows to be posted on the archive http://www.archive.org/audio/etree.php and there's always bit torrent as well http://tracker.bargainville.org/ http://bt.easytree.org/
Taping shows for personal, non-commercial use should be ok. Selling is what should be illegal
What is it with this site, and analogies!?
An analogy exists to illustrate a point! You can't prove something by analogy. It's not the same situation. Since it's a different situation, the conclusions from one do not automatically apply to the other.
And while we're at it, nobody was equating theft of a recording with rape. He was using one specific case as an analogy to another to illlustrate the point.
What is the purpose of your stupid analogy?