Intellectual Property Law

battlestar academia: law professsors defend bootlegger

By Obi

it's a good thing so few tenured law professors are adept in the courtroom.  why are they not adept?  i think it has to do with the rules of civil and criminal procedure.  these great administrative edifices -- standards, requirements, limitations, protocols -- are beneath the intellectual mind and for lesser lights to learn.  tenure, after all, means more than just not having to say you're sorry:  it means never having to say or do anything you don't want to do, and on the other hand being able to say anything you want.  conforming to complex procedural requiremnents, possibly on pain of sanctions, is antithetical to the esprit libre of the tenured professor. 

why is this disinclination a good thing?  let's look at the case of u.s. v. martignon, currently on appeal to the 2d circuit.

jean martignon, owner of a record store, a catalog of rock & roll, blues and r&b recordings and a website, sold bootleg recordings of live concerts.  that activity was brought to the feds' attention by the ever-vigilant r.i.a.a.  there was no question that martignon sold the illicit recordings, thereby violating 18 u.s.c. 2319A, which makes it a felony to record, transmit, distribute or sell recordings of live performances without the consent of the performers for commercial advantage or financial gain.  consequently, his lawyer challenged the validity of the law.

the case was assigned to judge harold baer of the fabled southern district of new york.  a clinton appointee, baer had generated controversy in earlier cases, notably ruling that unquestionably suspicious behavior by a surveillance target didn't provide probable cause for a warrantless search because folk in that neighborhood were generally leery of the police, and, in another case, that wearing ku klux klan masks is an exercise of freedoim of speech.

baer obliged martignon, finding that live recordings were excluded from protection because they were not writings (i.e., not fixed in a tangible medium of expression), as copyright law required; further that 2319A failed to provide performers with a "limited term" of protection, which the constitution's copyright clause requires.  he also found that 2319A could not be countenanced under the commerce clause, because the statute is "copyright-like" and conflicts with the the copyright clause's fixation and duration requirements.

I know you see the logical failings in the jurist's reasoning, and so did the "copyright and constitutional law professors" ("cacl") who filed an amicus brief in support of the "right" of free-riders to profit from performers' hard work under the hot lights. 

cacl attempts to overcome one of the primary failings of judge baer's position -- if live performances are not "writings", and therefore not the subject matter of copyright, then why impose copyright  limitations on them? -- with the ingenious, but disingenuous, argument that live performances, while not "writings, are "original creative works", the protection of which must adhere to copyright limitations even though the copyright clause only protects "writings", because the framers clearly intended that live performances should receive no protection.  Yes, I'm aware of the logical flaws in this argument, but i would only point out here that the "plain meaning" rule of statutory construction prevents expanding the reach of the copyright clause by negating protection for nonwritings.  after all, the copyright clause is also the "patent clause", but the patent clause doesn't require that a limited term be enforced on the trade secret formula for coca cola.

basically, the fixation argument doesn't close.  cacl's flawed conceit is that live performances are not enough like writings to be treated as writings for copyright protection purposes but are enough like writings to be subject to the fixation and  time limitations of copyright. A rationale made up to fit their desired outcome.

let's spend a minute on duration.  what is cacl cackling about?  The live performance disappears when the curtain goes down.  The exclusive right to record that performance disappears, as a practical matter, when the curtain goes down,  the next live performance is a by definition a different event with the same durational characteristics.  the recordings made of each live performance, being fixed in a tangible medium of expression, enjoy copyright protection for the term specified in the copyright act.  what cacl seems to be saying is that after some period of time, anyone should be able to record an elton john concert, no matter how different it is from past concerts, and to sell that recording in competition with the authorized concert recording.  that is no doubt a brilliant proposition, but totally unrelated to, and opposed to, copyright law.

judge baer and cacl are way off in the weeds on this hole.  i'll end here, even though it would be interesting to consider the common case of a live performance with pre-recorded elements that are copyright protected.  (e.g., lip-synch, pre-recorded background vocals or backup music, projected photos or film used with authorization, etc.).

Full post as published by TechLawyer on June 19, 2005 (boomark / email).