Judge Overturns 1994 Law Prohibiting Sale Of Bootlegs

However, ruling just applies to federal law: Bootlegging is still illegal under state laws.

A federal judge on Friday overturned a 1994 law prohibiting the sale of bootleg recordings of live music, saying that the law is too restrictive and provides “seemingly perpetual [copyright] protection” to the original performances.

But don’t go whipping out the DAT machines just yet: The ruling only strikes down a federal law. Each state still has anti-bootlegging laws on the books, which means that illicit live recordings are still illicit.

U.S. District Judge Harold Baer Jr. dismissed a federal indictment of Jean Martignon, owner of Midnight Records, a New York-based mail-order and Internet record store that sells bootleg recordings. Martignon faced up to five years in prison after being found guilty of selling “unauthorized recordings of live performances by certain musical artists” by a federal grand jury in October 2003.

In the ruling, Judge Baer said that the Federal Anti-Bootleg Statute was written in the spirit of the U.S. Copyright Law, which protects music and other written materials for a fixed period of time, “consisting of the life of the author and 70 years after the author’s death.” The bootleg ban essentially lasted forever, and was considered by the judge to be too restrictive to stand.

“This ruling only strikes down a federal statute,” Martignon’s attorney, David Patton, noted. “Individual states have different laws regarding bootlegging, and those laws are unaffected by this ruling. And the government might very well appeal [this] ruling anyway.”

So now that the Federal Anti-Bootlegging Statute has been ruled to be unconstitutional, how long will it be before state laws start getting overturned? Well, depending on how federal prosecutors decide to react — more than likely in the form of an appeal of Baer’s decision — it might never happen.

“At the moment, only the southern district of New York has said the federal law is unconstitutional,” copyright lawyer Rose Auslander said. “And there’s no way to know what the federal prosecutors are going to do. They certainly could appeal. I would tell your readers not to go out and buy those bootlegs just yet.”

Baer’s decision had no effect on what he called “fixed” works — musical studio recordings or published books — because they protected under traditional copyright law, while bootlegs are, under the ruling’s definition, live recordings.

(The ruling did not touch upon mixtapes, which are technically illegal but often tacitly condoned by record companies, owing to their promotional value.)

The Recording Industry Association of America, which for years has battled bootleggers and file-sharers through civil and criminal cases, disagreed with Judge Baer’s ruling, saying in a statement that, “A finding that the Federal Anti-Bootlegging Statute is unconstitutional 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 unauthorized copies of live performances.”

Megan L. Gaffney, the spokeswoman for the Manhattan U.S. attorney’s office that brought the original case against Martignon, said a decision to appeal Judge Baer’s ruling has not been made.

“We are reviewing the decision and will evaluate what steps ought to be taken going forward,” she said.