Federal Court Tosses Out Anti-Bootlegging Law

from the as-if-that-will-last... dept

A federal court today tossed out a law that banned the sale of bootleg recordings of concerts, noting that the law had a variety of problems that did not fit with copyright law. First, since copyright law only deals with protecting works for a “limited time” (Eldred/Lessig notwithstanding), and the ban on selling bootlegs had no time limit, the judge found the law went against the spirit of copyright law. Much more importantly, however, the judge claimed that copyright only applies to “fixed” works such as books or released music. A bootleg, by its definition, then is not a fixed work and thus not covered by copyright law. As you might imagine, the recording industry is freaking out about this decision, and there will almost definitely be some kind of appeal. If not, expect the entertainment industry’s friends in Congress to close these loopholes as quickly as possible. Of course, a more enlightened recording industry might realize that encouraging the practice of bootlegging helps increase interest in the band both for sales of recorded albums as well as the ongoing purchase of concert tickets — but that’s a much more complicated concept than “we must control absolutely everything.”

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Comments on “Federal Court Tosses Out Anti-Bootlegging Law”

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Adrian Anders (user link) says:

Re: What if low prices make it less popular?

Dorpus, I don’t know if you’ve bought bootlegs before, but the vast majority of good live bootlegs are sold for much more than the album from which the material was originally released on. Many economists argue that bootlegs are different than pirated copies in that they are not competing goods, but rather complimentary ones. That buying one will make it more likely to buy the other (like mustard and ketchup). I for one want both the various live recordings of bands I like, and the original version that appeared on an album because of their different sound properties, and the moods that fit with them. Sometimes I feel like a studio album, other times a live bootleg from a concert I went to. It varies. Your point only makes sense in the context of pirated copies sold on a street corner, not an album which in of itself is completely different from those sold in stores.


dorpus says:

Re: Re: What if low prices make it less popular?

> the vast majority of good live bootlegs are sold for much more than the album from which the material was originally released on.

Ok, so it sounds like there is a mystique built around “good live bootlegs” because of their scarcity, the “insider” social status associated with ownership of such goods. What if many bootlegs were available everywhere all the time? Would they still be expensive?

Humans have lived for thousands of years listening to music only once in a great while, but modern societies now brainwash children from birth (or in some cases, before birth) of the “necessity” of music.

hanzie says:

shaky ruling

I’m not too sure about this ruling either. Yes, the judge is correct that copyrighted works must be first poured into a concrete form in order to qualify for copyright protection. But this form need not be material, AFAIK. For example, a spoken poem would qualify, even if it hadn’t been written down somewhere. Why would bootleg performances be different?

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