Is Banning Bootlegs Constitutional? No... But, Yes

from the say-again? dept

Fri, Jun 15th 2007 6:44am — Mike Masnick

Apparently, the Second Circuit Court of Appeals has taken on the issue of whether or not a law banning concert bootleg recordings is unconstitutional. The court found that it actually is unconstitutional. It violates the copyright clause of the Constitution ("promote the progress... for a limited time...") because it does not set a limited term on the rights of the content producer. However, even after admitting that, the court then turns around and says that the law is constitutional, as long as you ignore the copyright clause and focus instead on just the commerce clause, which allows Congress to make laws regarding commerce. This seems like an odd sort of ruling, and basically suggests that Congress can now start passing more draconian, unconstitutional intellectual property laws... as long as they're related to commerce. That seems problematic since it opens up quite a loophole in the limitations that the Constitution put on intellectual property laws.

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19 Comments

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Anonymous Coward, 15 Jun 2007 @ 7:00am

I can see it now...
The next RIAA brainwash campaign will use images of Uncle Sam telling kids that it is unconstitution and therefore against God to copy music. Oh and and 11th commandment will be added:

11. Thou shall always honor thy copyright holder.
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Anonymous Coward, 15 Jun 2007 @ 7:20am

odd ruling?
Seems more like it says "these two pieces of law appear to be in opposition. do the degree it is within the scope of this court's powers to choose a winner, here is out choice. there is a mechanism to resolve the conflict this court has highlighted. good luck with that. "
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Anonymous Coward, 15 Jun 2007 @ 7:45am

stupidest law evah
most performers already ban, and enforce, the no-bootleg policy if they are worried about it.

What about the performers who actually *encourage* bootlegging? This is a sick waste of time. Hey, congress, how about spending your time on something useful... like growing some cojones!

When bootlegging is outlawed, only outlaws will bootleg...
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Overcast, 15 Jun 2007 @ 7:45am

11. Thou shall always honor thy copyright holder.

hehe, yeah really.

I like my commandment of buying stuff.

Buy unto stuff that's actually worth the gold they want for it.

I find myself just patting my wallet back into place so many times. And you know - so I didn't buy that CD... no matter, I won't miss it anyway.

Listening to Music, Watching TV is fine and dandy - but not when it's more work that..... work!

I find it more relaxing to work on my car or mow the grass anymore, plus it keeps me in better shape.
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Nyle, 15 Jun 2007 @ 8:24am

The biggest problem I have with all copyright law is this - The framers of the constitution specifically wanted intellectual property rights to expire. There are tons of good reasons for this including the benefit to society as previous intellectual property becomes public domain(open source). While I fully support the rights of artists and all intellectual property rights holders to make a fair and decent living off their works. I DO NOT SUPPORT - Corporations perverting the time limited nature of the constitutional protection of intellectual property.

The other issue I see is this - If a concert is held and no commercial recording is released that you can buy of it, then why can't a non commercial version be released. Otherwise, the performance is technically inaccessible to the public. I can tell you that the performances of some of the bands I love are totally different every time they do them. I own every album and every DVD from them. Who exactly again is hurt by me then buying content that isn't being sold by the artist or their representatives? I already own everything they sell commercially.

The same issue happens with any video/audio/text source that the publishing houses choose not to sell.

Let's say for one more example an old made for TV movie from 1978 - The World Beyond : The Mud Monster episode. Go and try to buy a legal copy of it somewhere? It's out of circulation and not available other than bootlegged. Who's intellectual property rights exactly are hurt by the bootleg copy of this work that is no longer sold?

Isn't the public hurt when an old audio/video/text is not longer available legally through any source because a corporation doesn't see a profit margin in getting the content out there? Yet, is the first to say no it's against the law for you to distribute a copy of that content that they don't sell? (Perhaps, my made for TV movie is a bad example of this hurt but you get the point.)

I will go out on the limb and say as a Citizen of the United States, I strongly believe that all Intellectual Property rights should expire no greater than the life of the artist(+ their S.O.) or 50 years whichever is longer.

After which point the Intellectual Property becomes the property of the people of the Units States of America and anyone can duplicate, perform or create derivative works thereof. If you believe as I do, why not write your congressman? We ultimately put them in office not the RIAA!
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chiickan, 15 Jun 2007 @ 8:31am

Its in the constitution as well as the commandments thou shalt download kazaa and get free music!
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bshock, 15 Jun 2007 @ 8:54am

Definitely time to join the Pirate Party.
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Anonymous Coward, 15 Jun 2007 @ 8:55am

The constitution is supposed to be set in stone law of the land, you can't ignore one part of it and follow just one, if that's the case let's just ignore the amendments that give women the right to vote, or blacks. When does it stop if we're just going to start ignoring certain parts of the constitution because it interferes with what we want to do we might as well just burn the damn thing.
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Anonymous Coward, 15 Jun 2007 @ 8:56am

Dave Matthews Band encourages bootlegging
Sorry for not doing a due diligence investigation but...

I have a friend who told me that The Dave Matthews Band allows bootlegging at their concerts.

So, if passed, this law wouldn't allow the band to freely give something away? It's not stealing if someone knowingly gives it to you, right?
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Anonymous Coward, 15 Jun 2007 @ 9:44am

This is how they circumvent/ will circumvent the fact that organizations like Soundexchange are clearly in voilation of copyright law (Soundexchange make a profit off of the creative works/copyrights of other, whether those rights holders want them to or not), but yet remain totally "legal".
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Anonymous Coward, 15 Jun 2007 @ 10:04am

In the circles of people who record bands bootlegging is a bad word. Most of the people that are into taping bands never sell any of their recordings. They distribute them freely.

The term "bootleging" insinuates selling.
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Fred, 15 Jun 2007 @ 10:31am

Not quite as bad as you think...
Not to rain on the "RIAA Sux!" parade, but this decision isn't quite as bad as it appears from the brief descriptions. First, the statute in question doesn't ban all taping of concerts or even all distribution of such recordings, just those recorded "without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain." So if the performer says it's OK, go to town. You can certainly record for your own purposes, and can even arguably record and distribute for free, although if you agreed not to record the performance as a condition of admission, you're probably still in trouble.

Second, a required predicate for this decision was the conclusion of the Court that Section 2319A was not a copyright law, but a criminal statute more akin to a ban on trafficking in counterfeit goods. Had this been a copyright law that conferred rights on the artist, it could not be justified under the Commerce Clause. This would eliminate the more egregious cases, such as Congress extending rights in perpetuity under the Commerce Clause. It's still a bad decision, because I think the Court was wrong in concluding that this was not a copyright law, but it's not the inevitable slide down the slippery slope it's being made out to be. See fn 7 - the Court points out that its decision should not be consider justification for a law that would ban sale of recordings that are otherwise out of copyright, for example.
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Susheel Daswani, 15 Jun 2007 @ 10:56am

Not really inconsistent....
Mike, I think you mis-characterize the Court's analysis. I don't think there is anything inconsistent with the Court's analysis, with respect to finding the statute unconstitutional under one enumerated power but constitutional under another. In fact, that is perfectly logical, since the power of the federal government is one of enumerated powers. Since the power of the federal government is by definition limited, courts will find a statute constitutional if it is a valid expression of one of the federal government's enumerated powers. Here, the court did not find support for the statute in the IP clause, but did find it valid under the commerce clause. Whether the reasoning is correct is another issue - my point is that the methodology is not really 'odd'.
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Anonymous Coward, 15 Jun 2007 @ 11:37am

Re: Not really inconsistent....
Whether the reasoning is correct is another issue - my point is that the methodology is not really 'odd'.
It's "odd" because the court's ruling basically means that the commerce clause renders the copyright clause moot for any case involving any kind of "commerce", which would be just about any kind of case likely to ever wind up in court to begin with.
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Susheel Daswani, 15 Jun 2007 @ 11:56am

Re: Not really inconsistent....
I see your (and Mike's) point. That said, I'm not sure this broad interpretation of the commerce power is any more odd with respect to bootlegging that it is to private discrimination, i.e., under the Commerce Clause, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce. I'm sure there are many racists who in the 50s and 60s found the Ollie's BBQ ruling to be a big loophole :) .

Fred's point should allay your fears though - if the Court ruled this was a copyright law that was constitutional because of the Commerce clause, then that would be truly odd.
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Chris Wuestefeld, 15 Jun 2007 @ 1:04pm

Nope, not inconsistent
Susheel has it exactly right. The Constitution defines a list of powers that the People have ceded to the federal government. One of those powers is to grant patents or copyrights, but only for a limited time. Another power is to "Regulate commerce... among the several States". The fact that patents can only be of limited time doesn't mean that Congress doesn't have OTHER powers to regulate the use of the products of creative endeavors in other ways.

That said, the interstate commerce clause is badly abused. It tends to be the catch-all that is used as a fig leaf of justification for any darned thing the government wants to do. For example, the Constitution gives the federal government no authority over education, so how do we get a Department of Education, or a "No Child Left Behind" act? Well, it seems that having a good education facilitates interstate commerce... How does the government get to regulate guns (even if we do ignore the 2nd Amendment), EVEN WHEN they are manufactured and sold within the same state? Well, they MIGHT be sold into another state...

And none of this should be interpreted as a defense of what may well be an ill-conceived law.
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Anonymous Coward, 15 Jun 2007 @ 4:13pm

The fact that patents can only be of limited time...
The story was about copyright but if you want to add in patents OK, the same principle applies in this case.

...doesn't mean that Congress doesn't have OTHER powers to regulate the use of the products of creative endeavors in other ways.
Just as a tax by any other name is still a tax, a patent or copyright by any other name is still a patent or copyright. The constitution doesn't say that patents or copyrights can only be 'called' such for limited time, after which they have to be 'called' something else.
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Michael A. Banks, 15 Jun 2007 @ 4:38pm

Banning Bootlegs and Copyright Issues
Hm ... I suppose that interpretation of the Constitution is why there are all those E-book versions of The Da Vinci Code available for 99 cents on eBay.
--Mike
http://www.michaelabanks.com
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Anonymous Coward, 15 Jun 2007 @ 7:02pm

Re: Re: Not really inconsistent....
I'm sure there are many racists who in the 50s and 60s found the Ollie's BBQ ruling to be a big loophole :) .
And now for the rest of the story: In Ollie the court ruled the commerce clause could be applied only in the absence of any other "express constitutional limitation". In this case the court ruled that the commerce clause actually overrides another constitutional limitation. Big difference. As a law student you should know the difference.
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