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2nd Circuit: Congress can protect performers from bootleggers

By The Associated Press
06.14.07

NEW YORK — When Congress outlawed bootleg recordings of musical performances, it protected performers from an artistic analog of criminal trespass, according to a federal appeals court.

The 2nd U.S. Circuit Court of Appeals ruled yesterday in U.S. v. Martignon that Congress has the authority to criminalize bootleg recordings of performances and the distribution businesses that can accompany them, in a case watched closely by the recording industry. The court compared Congress' protection of artists to criminal trespass laws and said it was safeguarding performers from commercial predators.

The unanimous three-judge panel overturned a lower court opinion that had concluded Congress improperly used its powers to outlaw bootlegs of musical, stage and other performances under a provision of the Constitution's commerce clause.

Under the clause, Congress has the power to promote the sciences and arts by protecting the songs, writings and discoveries of authors and inventors, the 2nd Circuit said. Congress criminalized bootlegging, or illegally copying and selling, in 1994.

"Indeed, regulation of bootlegging is necessary at the federal level because of its interstate and international commercial aspects," the appeals court wrote. "Without this scope, bootlegging could be adequately regulated, as it has been in the past, by the states."

The appeals court said the case can be challenged at the lower court level on First Amendment grounds. And in a footnote, the court said that its ruling does not affect people who might record concerts for their personal enjoyment.

The appeals court ruling means the federal government can proceed with a case it brought against Jean Martignon, the owner of the now defunct Midnight Records. Martignon had been accused of breaking the law by reproducing an unauthorized recording and offering it for sale.

Among his supporters in the case were the American Association of Law Libraries, the Association of Research Libraries, the Special Libraries Association and 29 intellectual property and constitutional law professors.

Those supporting the government in its case against him include several major record companies, the National Academy of Recording Arts & Sciences, the American Federation of Musicians of the United States and Canada, the American Federation of Television and Radio Artists, the Recording Artists Coalition and the National Music Publishers Association Inc.

Martignon's lawyer, David E. Patton, said his client's Manhattan store, which specialized in rare recordings, was put out of business by a government raid and loss of merchandise that accompanied his 2003 arrest.

"Obviously, we're disappointed by the opinion," the lawyer said. "It's really part of a broader pattern in this country of limited public access to artistic creation and intellectual property of all sorts."

He said he had not decided whether to appeal.

A spokeswoman for the government said she did not have an immediate comment.

The president of the American Association of Independent Music, Rich Bengloff, said his organization supports any ruling protecting artists from the sale of unauthorized recordings.

"Artists who create music deserve to be paid for their creativity, just as the record labels who've invested in producing the music deserve to be compensated for their efforts," he said.


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