Two and a half years after a federal judge held that making and selling bootleg recordings of live concerts was not a federal crime in New York, an appeals court yesterday reversed that decision. As a result, Jean Martignon, who operated Midnight Records in Manhattan, will face criminal bootlegging charges.

Martignon had a store in Manhattan, a catalog service and a Web site. He was arrested in September 2003 after an investigation initiated by the RIAA. A federal grand jury then indicted him for selling unauthorized recordings of live performances.

He was charged under the 1994 federal anti-bootlegging law, which was enacted by Congress under its authority from the Commerce Clause of the U.S. Constitution to fulfill its obligations under an international treaty. The law makes the unauthorized recording, transmission or distribution of live musical performances a crime.

But in September 2004, District Court Judge Harold Baer Jr. in New York dismissed the indictment, claiming that the law is "impermissible" since it grants greater protection to live recordings than allowed by federal copyright law, which only protects performances that are "fixed" in some medium (such as prerecorded music). The anti-bootlegging law also grants "perpetual protection to live musical performances," which conflicts with the limited duration of copyright protection, Baer wrote at the time.

In its 23-page opinion, the Second Circuit Court of Appeals on June 13 held that Congress was "free to act under the Commerce Clause" to enact the anti-bootlegging law. The court vacated dismissal of the indictment and sent the case back to the District Court.