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September 24, 2004
Copyright Terms Must Have LimitsEmail This EntryPrint This Entry
Posted by Donna Wentworth

Whaddaya know (reg. req.):

A U.S. law criminalizing the sale of bootleg recordings of live performances is illegal because it doesn't limit the life of a copyright, a judge ruled in the case of a Manhattan man indicted for selling concert tapes.

U.S. District Judge Harold Baer struck down the law, which carries a five-year prison term. He didn't address a related civil statute. U.S. copyright law limits protection of a work to the life of the author plus 70 years, Baer said. The criminal anti-bootlegging act runs afoul of that legal standard because it "grants seemingly perpetual protection to live musical performances," the judge said.


The case is U.S. v. Jean Martignon, 03cr1287, U.S. District Court, Southern District of New York.

Later (Sept. 25): This I didn't know: Larry Lessig worked on this case, and will soon have the scanned opinion posted. The short of it: "It says (1) this is copyright-like, (2) must be under the Copyright clause, and (3) commerce can't supplement. "

Joe Gratz has more on the context, promising still more once the opinion is posted: "In the last notable criminal bootlegging case, United States v. Moghadam (11th Cir. 1999), the court went through some pretty deep constitutional analysis, holding that the statute was enacted under the commerce clause and rejecting Moghadam's appeal that the statute is invalid because it is inconsistent with the Copyright Clause's fixation requirement. Moghadam failed to raise the 'limited times' issue, so the court could not invalidate the law on these grounds, though it seemed inclined to do so."

Category: Laws and Regulations

Mickey on September 24, 2004 03:57 PM writes...

The Martignon decision is not so surprising, there is an 11 Cir case, Monghadam, which suggests this holding. The more interesting question is why does not the same reasoning apply to the DMCA? I have believed for some time that violation of the limited times clause of the the US Constitution is a major defect in the DMCA.

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