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US Judge Strikes Down Bootleg Law 312

Posted by CowboyNeal
from the soundboards-and-dats dept.
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."
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US Judge Strikes Down Bootleg Law

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  • by DrJonesAC2 (652108) on Saturday September 25, 2004 @12:57PM (#10349059)
    There is NO FRIGGIN WAY this is going to stand. The RIAA and MPAA will see to that. $$$
    • HMmm. Too bad the $$$-based lobby is listed to too much, in the USA. Can anybody tell me what the years _before_ my puberty were like w.r.t. legislation in global context? What about (c), trade, patents, money(laundring), privacy, etc? The past few years look SO bad so I want to check if this is a trend or a change
      • They were largely the same except the Internet wasn't around to keep everyone apprised of all the corporations' shady dealings, so it was easier for crap like this to get perpetrated.
        • by badasscat (563442) <basscadet75@@@yahoo...com> on Saturday September 25, 2004 @02:37PM (#10349725)
          They were largely the same except the Internet wasn't around to keep everyone apprised of all the corporations' shady dealings, so it was easier for crap like this to get perpetrated.

          Well, if anything, the past was actually worse. The internet has not only allowed us to keep more apprised of what's going on, but it's also led to increased availability of bootlegs and other illicit material. It used to be that if you wanted a live recording of a show, and you didn't have the ability to go to the show yourself, you basically had to go to one of these little record stores in New York or some other big city and buy one. And of course, it was very easy for the feds to figure out where these dealers were and shut them down. (More would pop up later, but it wasn't this rising tide that the internet has now wrought.)

          I used to work at one of these record stores - Zapp Records in New York. One day in the mid 90's I came in to work only to see a whole mess of US Customs agents rifling through our shelves. They ended up confiscating half of our inventory and the store shut down a month or two later after the owner fled to Germany to escape federal prosecution.

          This is the way it used to be. What goes on now is no different, but because supply is now outstripping law enforcement's ability to deal with it, it's probably actually easier to get away with breaking bootlegging laws at this point.

          My point being, there were no "good old days", as the original question seemed to be implying. These laws have always been enforced and in fact were probably easier to enforce before the internet became mainstream.
    • Isn't it worth noting that this was a *record dealer* and was *selling* unauthorized copies of the shows.

      What, that's now ok too?

      • 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 [findlaw.com] . Even though the rapist is freed, and precedent is set, the court isn't saying it's okay to rape someone.

        • by bullitB (447519) on Saturday September 25, 2004 @01:33PM (#10349295)
          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.
        • "Even though the rapist is freed, and precedent is set, the court isn't saying it's okay to rape someone."

          To follow your analogy, would you then consider profiting by selling unauthorized shows to be such a "rape"? (obviously that's too strong a word, and I'm sure neither of us mean to equate it that way)

          It seems to me that the prevailing sentiment (like the parent post) sees everything in a "Fuck the RIAA" kind of way -- but if the artist is being ripped off, is that something to cheer?

    • by bechthros (714240) on Saturday September 25, 2004 @01:14PM (#10349168) Homepage Journal
      I agree. Have fun taking this one all the way to the Rehnquist/Scalia Supreme Court.
    • "If you strike me down, I shall become more powerful than you can possibly imagine..."

      or.... not.
    • The Constitution mandates that specific time frames for copyrights be established, and the judge has said that this is ambiguous about how long the copyright for this particular type of recording lasts. Unless the appelate court clarifies it by issuing a ruling saying that its length is already covered under copyright law, it will most likely stand. The courts don't like ambiguous laws, especially laws that are ambiguous where the U.S. Constitution is quite clear.

      The only thing you have to worry about are
    • All they need to do is set a time limit of say 999 years, and it will there will be no constitutional challenges.
  • A BBC article on a U.S. court ruling? Maybe you could include a link to a U.S. based news source to balance that out.
    • Re:BBC (Score:5, Insightful)

      by rusty0101 (565565) on Saturday September 25, 2004 @01:00PM (#10349075) Homepage Journal
      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
      • by Anonymous Coward on Saturday September 25, 2004 @01:14PM (#10349170)
        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.
    • Re:BBC (Score:5, Insightful)

      by glpierce (731733) on Saturday September 25, 2004 @01:03PM (#10349097) Homepage
      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.
      • Re:BBC (Score:2, Insightful)

        by Anonymous Coward
        Additionally, BBC News 24 shows "The news Americans get" with Peter Jennings.
      • Re:BBC (Score:4, Insightful)

        by rokzy (687636) on Saturday September 25, 2004 @01:21PM (#10349217)
        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.
        • by afidel (530433)
          It's not like the Beeb doesn't have a bias, it most certainly does. It's just that it's bias doesn't happen to include cowtowing to the political interests in the US, just some of them in the UK. One of the most enlightening classes I ever took was an Advanced Placement (honors) US History class in high school. We used three different college textbooks as the reading material for the year, on our final a major portion of it was an essay comparing and contrasting the biases of the different authors and how t
      • by SunPin (596554)
        Don't forget the best features of American media such as:

        --Fabricated stories.
        --Fabricated quotes.
        --Fabricated people.
        --Poor grammar.
        --Inexcusable spelling errors.

        Since I haven't gotten past these problems, it's hard to take a position on this "death & scandal" subject matter that you speak of.
        • Re:BBC (Score:3, Funny)

          by dcsmith (137996) *
          Since I haven't gotten past these problems, it's hard to take a position on this "death & scandal" subject matter that you speak of.

          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...

      • Re:BBC (Score:4, Insightful)

        by Dachannien (617929) on Saturday September 25, 2004 @02:11PM (#10349543)
        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.

    • Here's Reuters... (Score:4, Informative)

      by turnstyle (588788) on Saturday September 25, 2004 @01:06PM (#10349117) Homepage
      Here's Reuters [reuters.com]
    • Re:BBC (Score:2, Insightful)

      by Grey Tomorrow (722221)
      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
    • NY Post (Score:4, Informative)

      by ari_j (90255) on Saturday September 25, 2004 @01:12PM (#10349154)
      Sure, here's the New York Post's article [nypost.com].

      Or did you want a legitimate source? Try USA Today [usatoday.com].
    • Re:BBC (Score:4, Funny)

      by ImaLamer (260199) <john.lamarNO@SPAMgmail.com> on Saturday September 25, 2004 @01:28PM (#10349256) Homepage Journal
      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 [wipo.int] is also on the case.

    • http://news.google.com/news?hl=en&ned=us&q=bootleg &btnG=Search+News
  • The judges themselves have made copies. They probably didn't sell it on the street. But the concept of copy and backup is just too much of a thin line with boot legging.

  • by VinceWuzHere (733075) * on Saturday September 25, 2004 @12:59PM (#10349072)
    Copy of an expanded version of the story with informative links (at bottom) from . [newsday.com]

    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

    • Offtopic (Score:5, Funny)

      by pjt33 (739471) on Saturday September 25, 2004 @01:05PM (#10349112)
      Did you deliberately adjust the length of that post? My preferences are set to clip long posts at 2k, and clipped it at
      The Recording Industry Ass
      I thought for a second that you were quoting an article from The Register.
  • If everybody (Score:3, Interesting)

    by red_kola (754890) on Saturday September 25, 2004 @01:00PM (#10349076)
    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!
    • Just out of curiousity, what is the Grateful Dead's enlightened position and attitude to the recording and distribution of their live performances?
      • Re:Position of Dead (Score:3, Informative)

        by K8Fan (37875)

        Just out of curiousity, what is the Grateful Dead's enlightened position and attitude to the recording and distribution of their live performances?

        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

  • bootleg (Score:5, Funny)

    by sgtron (35704) on Saturday September 25, 2004 @01:03PM (#10349091)
    Maybe I'm too old, but I thought this was going to be an article about alcohol.
    • That was my first thought too...

      Never even considered the thought about concert tapes ...

      Story couldn't have been about illegal copies of released works, since everyone incorrectly calls that piracy now..
  • by ravenspear (756059) on Saturday September 25, 2004 @01:05PM (#10349108)
    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
  • by tomhudson (43916) <barbara DOT huds ... a-hudson DOT com> on Saturday September 25, 2004 @01:07PM (#10349122) Journal
    10-year-old anti-bootlegging law unconstitutional
    Now if they could just apply the same reasoning to bootlegged booze (which is where the term "bootleg" came from).
  • by Anonymous Coward
  • by TheQwe (795209)
    ..."seemingly perpetual protection."
    Isn't that the point of copyright laws? to protect the author/creator/composer/whatever?
    • by p-hawk42 (776574) on Saturday September 25, 2004 @01:17PM (#10349185)

      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.

      • 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.

        A point of clarification.

        The original intent of copyright law was to let the public enjoy the benefits of the work perpetually in exchange for a temporary monopoly. The temporary monopoly was only granted as a side-effect of the original intent, it was not even the original intent.

        So if you had been an artist who refused to share your work with the public, y

    • by idesofmarch (730937) on Saturday September 25, 2004 @01:23PM (#10349230)
      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."
      • But perpetual protection of Mickey Mouse is ok, assuming enough funds have been paid to corrupt officials.
        • "But perpetual protection of Mickey Mouse is ok,...

          Not perpetual: "perpetual". Two lifetimes isn't really forever, it only appears that way to mortals. SCOTUS can't help it if you don't live for 300 years, excercise more.

        • Mickey Mouse is a trademark. Whole different kettle of mice.
        • I find it ironic that everyone uses Disney as the whipping boy of all that's wrong with copyright when in fact they exemplify how the system does, and should work. Many arguing for shorter copyright terms are only doing so because they simply want shit for free. Disney, on the other hand, uses what's in the public domain already and creates wonderful works of art and culture. There's nothing stopping you from doing your own animateds versions of Alice in Wonderland or the Sword in the Stone if you want e
          • by Tim C (15259)
            Disney, on the other hand, uses what's in the public domain already and creates wonderful works of art and culture... you argue that copyrights are stifling creativity

            You know, Disney using stuff from the public domain and copyrights stifling innovation are not mutually exclusive. In fact, if Alice in Wonderland, Peter Pan, etc were still under copyright, Disney may well not have been able to make their versions, would they?
          • Disney, on the other hand, uses what's in the public domain already and creates wonderful works of art and culture. But what do you do when Disney allows nobody else to use these public domain works because they have copyrights and trademarks on them due to their remake?
    • by koreth (409849) on Saturday September 25, 2004 @01:50PM (#10349417)
      No, that's not the point of copyright law. Protecting artists is a means, not an end, much as the RIAA might wish otherwise. The point of American copyright laws -- as stated quite unambiguously in the US Constitution -- is to encourage the creation of new work. To achieve that goal, the framers of the Constitution envisioned a bargain between creators and everyone else: creators get the exclusive right to make copies of their work for a limited time, after which the work becomes the property of society as a whole (public domain) and thus available as a starting point for the next generation of artists and authors.

      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.

  • Confusion (Score:4, Funny)

    by p-hawk42 (776574) on Saturday September 25, 2004 @01:14PM (#10349173)
    From the article:

    "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?

  • by Anonymous Coward on Saturday September 25, 2004 @01:15PM (#10349180)

    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.

  • More details (Score:2, Informative)

    by Anonymous Coward
    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 scen
  • That's weird... (Score:2, Insightful)

    by the_skywise (189793)
    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 j
    • Re:That's weird... (Score:2, Informative)

      by idesofmarch (730937)
      The reason it is (or at least was) illegal to record live performances, is because of copyright. I think you are getting too caught up in the "copy" part of copyright. A copy does not need to be of another recording - a recording of a live performance constitutes a copy, because you are copying the broadcast.
    • Re:That's weird... (Score:5, Informative)

      by dgodwin (732273) on Saturday September 25, 2004 @02:10PM (#10349534)
      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 [archive.org] and there's always bit torrent as well http://tracker.bargainville.org/ [bargainville.org] http://bt.easytree.org/ [easytree.org]

      Taping shows for personal, non-commercial use should be ok. Selling is what should be illegal
  • by Doc Ruby (173196) on Saturday September 25, 2004 @01:31PM (#10349279) Homepage Journal
    In the true rock & roll tradition, Midnight Records [midnightrecords.com], the NYC bootleg store that was exonerated by this ruling, has an invalid certificate installed in their webserver. Apparently their server host [psoft.net] self-certifies, without membership in a trust network including popular web browsers. It's these borderline operators [imdb.com], who take the risks at the edges of the protection of our liberty, who wind up protecting us all.
  • Oh, great (Score:5, Funny)

    by bullitB (447519) on Saturday September 25, 2004 @01:36PM (#10349315)
    ...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.
  • See the USC (Score:5, Informative)

    by max born (739948) on Saturday September 25, 2004 @01:41PM (#10349350)
    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.

    Here's the text:

    Congress shall have the power ...[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;
    • Re:See the USC (Score:5, Insightful)

      by aiken_d (127097) <brooks&tangentry,com> on Saturday September 25, 2004 @02:00PM (#10349481) Homepage
      That's a very interesting quote from the Constitution.

      It seems to me that one could argue that the Constitution prohibits copyright terms that are generally expected to be longer than the author's lifetime. That is, if you grant someone rights for a "limited time," that the person in question should expect those rights to expire at some point.

      Note that the Constitution is also clear that the rights are being granted to "authors and inventors," *not* their heirs, designees, estates, etc. If copyright were intended to be perpetual and handed down among generations and corporations, wouldn't the Constitution say that?

      Cheers
      -b
      • Exactly, it says "limited times to auhtors". How can a dead person have exclusive rights?
  • by trudyscousin (258684) on Saturday September 25, 2004 @01:41PM (#10349351)
    Distributing bootlegs on Zip disks, well, in the eyes of the RIAA, that's gotta be tantamount to murder.
  • How CNN thinks (Score:3, Interesting)

    by PetoskeyGuy (648788) on Saturday September 25, 2004 @03:53PM (#10350204)
    Not mention in Technology
    Not mention in Law
    CNN/Money has the story [cnn.com]

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