Appeals Court Denies Bootleggers

The 2nd U.S. District Court of Appeals ruled June 13th that Congress has the right to criminalize bootlegged recording and its distributors in the long-running lawsuit against Jean Martignon, owner of the now-defunct Midnight Records in New York.

The panel of three judges unanimously ruled to overturn a lower court decision that concluded Congress improperly used its power to outlaw bootlegs of musical, stage or other performances under a provision in the Constitution’s commerce clause.

The clause states that Congress has the power to promote arts and sciences by protecting songs, writings and discoveries of authors and inventors. Congress outlawed bootlegging and its sales 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 panel said its decision could be challenged at the lower court level under the First Amendment and does not affect anyone who records a concert for their personal use.

The decision is another step forward in the federal government’s case against Martignon, who is accused of reproducing an unauthorized recording and offering it for sale at his Manhattan-area store that specialized in rare recordings.

Martignon’s lawyer, David E. Patton, said his client was arrested and put out of business following a government raid in 2003.

"Obviously, we’re disappointed by the opinion," Patton 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."

Patton said he had not decided whether to appeal.