Friday, June 15, 2007

Second Circuit Upholds Constitutionality of Anti-Bootlegging Statute

The Second Circuit Court of Appeals upheld the constitutionality of the federal live performance anti-bootlegging statute, 18 U.S.C. 2319A.  In a challenge to a prosecution under the statute, the district court had declared it unconstitutional because the statute exceeded Congress's power under the Copyright Clause and the Commerce Clause could not support a provision that otherwise would not pass constitutional muster under a specific power.  The statute makes it a crime to copy, transmit, or distribute a live music performance without the performer's consent.  In upholding the statute, the Second Circuit found in U.S. v. Martignon (available below) that the criminal provision was not an exercise of power under the Copyright Clause, which only authorizes Congress to secure rights "[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."  According to the court of appeals, Section 2319A is a criminal statute and not a grant of rights to performers, so the statute is not subject to the limitations of the Copyright Clause.  It then determined the statute is a permissible exercise of power under the broadest grant of power in Article I -- the Commerce Clause -- leading the court to conclude: "It would have been eminently reasonable for Congress to conclude that the sale and distribution of bootleg phonorecords will have a substantial interstate effect on the sale and distribution of legitimate phonorecords. Because Section 2319A is not a copyright law and its enactment was well within the scope of Congress’s Commerce Clause authority, it is constitutionally permissible unless some other constitutional provision prevents its enforcement." (ph)

Download us_v_martignon_opinion_june_13_2007.pdf

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