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The Wrong Box: <i>U.S. v. Martignon</i> Not a Copyright Case
A prominent court, the U.S. District Court for the Southern District of New York, has rendered what may become a prominent opinion in the copyright arena, U.S. v. Martignon, No. 03 Cr. 1287 (S.D.N.Y. Sept. 27, 2004). Unfortunately, the analysis in the decision misses the essential point that the issue was not really one of copyright.
Judge Harold Baer, Jr.'s decision declared unconstitutional the federal anti-bootlegging statute set out in 18 United States Code '2319A (“the Act”). In essence, the Act declares it a criminal offense when, without the consent of the performer(s) involved, one knowingly and for purposes of commercial advantage or private financial gain fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation. It is also an offense to transmit to the public without authorization the sounds or images of a live musical performance or traffic in unauthorized recordings of such. (A sister provision in 17 U.S.C. '1101 providing for civil liability for such bootlegging was not at issue in the case.) A federal grand jury indicted Martignon on one count of violating the criminal provision by selling “unauthorized recordings of live performances by certain musical artists through his business.” Martignon opinion (hereinafter “Op.”) at 2.
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