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Copyright Duration and Bootlegging

Federal Judge Harold Baer of the Southern District of New York has declared the federal criminal anti-bootlegging statute unconstitutional in U.S. v. Martignon. (Joe Gratz has a pdf version of the opinion here.) The scope of the statute is not limited to “Writings,” and it lacks a durational component, i.e., it makes no effort to abide by the “Limited Times” requirement of Article I, section 8, clause 8. Is this a big deal? It is in one sense — a smart federal judge got educated on contemporary IP policy debates. It may not be in a different sense: The court’s theory isn’t bulletproof, and it may not have much of an impact as a practical matter.

The only other opinion on the question, U.S. v. Moghadam, concluded that the civil version of the anti-bootlegging statute was constitutional under the Commerce Clause, over the objection that it was not limited to “Writings.” Moghadam comes out of the 11th Circuit, so Judge Baer isn’t bound by the precedent. But he distinguishes Moghadam; he doesn’t disagree with it. He does so by relying on duration and fixation objections simultaneously. Martignon might not have prevailed by relying on the fixation claim. The duration objection is key. This is a son (small “s”) of Eldred.

If that’s so, then isn’t the court in too much of a hurry to accept the constitutional claim? Here’s the relevant text of the statute (18 U.S.C. sec. 2319A):

(a) Offense. –

Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain –

(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation;

(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States;

shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both.

Martignon was indicted for selling bootlegged recordings, not for making the recordings, but the judge struck down the whole statute. Where’s the Limited Times objection? Take subsections (a)(1) and (2) — fixing the live performance, and transmitting the live performance. Is there an express durational limit? No. Is there an implied limit, one that’s reasonably read into the text? Sure: A violation of (a)(1) or (a)(2) occurs contemporaneously with the live performance itself.

That leaves (a)(3), distributing bootlegged recordings. Is it clearly a copyright-related regulation? (Judge Baer concluded that the statute as a whole has a copyright basis, a conclusion that justified his applying the fixation and duration requirements.) Reasonable people may differ; severing the distribution claim from the recording claim highlights the commercial interests of the recording companies and diminishes the “authorial” interests ostensibly at the heart of copyright. If it is a copyright regulation, does it fail the Limited Times requirement? Probably. The Writing requirement? Probably.

But if this part of the statute fails constitutionally (and given Moghadam, that’s no sure thing), are performers helpless in fighting bootlegging? No. Remember: anything fixed in RAM is fixed for Title 17 purposes. Are prosecutors helpless? No. Well over half of the states have criminal anti-bootlegging statutes on the books. Are consumers helpless? No again. Support artists like Elvis Costello, who nicely distances himself from threats to criminalize listening to his music.