NEW YORK — Congress has the authority to criminalize bootleg recordings of musical performances and the distribution businesses that can accompany them, a federal appeals court ruled Wednesday in a case watched closely by the recording industry.

The 2nd U.S. Circuit Court of Appeals in Manhattan overturned a lower court opinion that had concluded that Congress improperly used its powers to outlaw bootlegs of musical, stage and other performances under a provision of the 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 court said. In 1994, Congress criminalized bootlegging, or illegally copying and selling.

Personal use permitted

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

The ruling means the federal government can proceed with its case 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.

In its ruling, the appeals court said Congress was protecting performers from commercial predators.

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 the loss of merchandise that accompanied his 2003 arrest.

"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 said he had not decided whether to appeal.


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No worries. It only affects those who SELL boots for PROFIT.

Does not include me or anyone I know.

Woohoo!!