Quote of the Day - We don't sell so many records. When I make the album, I pay the musicians.
Despite a pitch from law professors and librarians decrying limitations on the distribution of live performance recordings, the Second Circuit reversed the trial court and ruled that Congress validly enacted a law outside the scope of the Copyright Clause of the U.S. Constitution, making that distribution a crime. Likening the law to criminal trespass, the Court said the power of the Commerce Clause gives Congress the authority to grant protections to artists unlimited by time. The Copyright Clause limits that protection to the life of the author, plus seventy years.
The Defendant in the criminal case, Jean Martignon, had been charged with selling illegally recorded live performances at his store, Midnight Records in Chelsea, New York. Professors and librarians joined his arguments that because Congress could not grant time-unlimited protection to artists under the Copyright Clause, they should not be allowed to do so under the Constitution's Commerce Clause.
The government on the other hand claimed the new criminal statute, 18 U.S.C. sections 2319A(a)(1) and (3), an anti-bootlegging provisions enacted in 1994 following the Uruguay international trade talks created no such conflict. They reasoned that the Commerce Clause was much broader than the Copyright Clause and did not preclude criminalizing the distribution of live performances. The government was joined by the Association of American Publishers, Warner Music Inc. and National Academy of Recording Arts & Sciences.
It's a close call, one that likely the Supreme Court will get the chance to consider. You likely haven't heard the last of this case yet.