Making and selling bootleg recordings of live concerts may no longer be a federal crime in New York City, at least if one judge's opinion is upheld.

Making and selling bootleg recordings of live concerts may no longer be a federal crime in New York City, at least if one judge's opinion is upheld.

The federal anti-bootlegging law (18 U.S.C. section 2319A) that makes the unauthorized recording, transmission and distribution of live musical performances a crime is "impermissible," held the U.S. District Court in New York City in a Friday (Sept. 24) ruling.

The decision dismissed federal charges against Jean Martignon, who operated Midnight Records through a store in Manhattan, a catalog service and a Web site.

Martignon was arrested in September 2003 after an investigation initiated by the RIAA. He was indicted by a federal grand jury for selling unauthorized recordings of live performances through his business.

In spring, Martignon moved to dismiss the indictment, arguing that the anti-bootlegging statute is unconstitutional because it regulates live performances for an unlimited period of time, which exceeds the authority Congress was granted to protect copyrights under the Copyright Clause of the U.S. Constitution.

The court held that the law violates the limited power Congress has to protect copyrights.

Since the anti-bootlegging law protects live performances not protected by copyright, the court wrote, and attempts to protect a copyright for an unlimited period of time, the law is unconstitutional.

The court's opinion did not address songwriters' copyrights in the musical compositions performed during a concert, which may not be copied without permission. It noted, however, that the ruling has no effect on the "sister" law that imposes civil penalties for bootlegging (17 U.S.C. section 1101).

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