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A federal law that prohibits the unauthorized recordings of live concerts was ruled unconstitutional last week by a federal judge in New York. Southern District Judge Harold Baer Jr. found that the anti-bootlegging statute passed in 1994 exceeded Congress’ authority under the Copyright Clause to protect the works of artists for a limited time. The judge, in United States v. Martignon, 03 Cr. 1287, dismissed a one-count indictment against Jean Martignon, the owner of Midnight Records music business in Manhattan. Martignon was arrested in September 2003 for violating 18 U.S.C. �2319A, the anti-bootlegging law, which prohibits the unauthorized recordings of live musical performances. He challenged the law claiming that its ban on live performances for an unlimited amount of time went beyond the authority of Congress to protect the works for “limited times,” in the Copyright Clause in the Constitution. Martignon also charged that the law violated the free speech protections of the First Amendment and ran afoul of the principles of federalism. The Copyright Clause empowers Congress “to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Baer noted that the U.S. Supreme Court has made it clear that the Copyright Clause is “both a grant of power and a limitation.” “Because the anti-bootlegging statute provides seemingly perpetual protection for unfixed musical performances, it runs doubly afoul of Congress’ authority to regulate under the Copyright Clause,” he said. Baer said the concept of “writings” in the clause “has expanded over time,” but it has “never moved into the realm of unfixed works,” such as live performances. “The Framers of the Constitution created a system whereby only fixed works were entitled to Copyright protection, and Congress has honored this interpretation of ‘writings’ ever since,” he said. “Hence, by virtue of the fact that it regulates unfixed live performances, the anti-bootlegging statute is not within the purview of Congress’ Copyright Clause power.” Unlike the Copyright Act, which honors the clause’s “limited times” restriction through limiting copyright protection to the lifetime of the author plus 70 years, “the anti-bootlegging statute procures seemingly perpetual protection for performers.” And even though Congress could have attempted to justify the regulation under the “affirmative grant” of power in the Commerce Clause, it may not use the Commerce Clause to “bypass” the constraints imposed by the Copyright Clause, he said. “Because there is no fair reading of the anti-bootlegging statute that would render it valid under Copyright Clause, I find the statute to be unconstitutional,” Baer ruled. David Patton of The Legal Aid Society’s Federal Defender Services Unit represented Martignon. Assistant U.S. Attorney Samidh Guha represented the government.

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