September 24, 2004  ·  Lessig

A district court in the Southern District of New York has struck down the anti-bootlegging provision of the copyright act. There is a new report here. I should have the opinion up soon. (Disclosure: I did pro bono work on this case.)

UPDATE: I have a scanned pdf of the opinion. (Warning: It is huge (64mg)). (Thanks to Joe Gratz, here‘s a very readable compressed version at about 500k).

The opinion is fantastic. The Court concludes (1) that antibootlegging regulations are “copyright-like” regulations, and thus are within the scope of the Copyright Clause, (2) that this regulation violates the Copyright Clause because it doesn’t have a limited term (citing Eldred (sweet justice)) (And remember, the 11th Circuit’s case expressly did not consider the limited times argument), and (3) that Congress can’t use the Commerce Clause to do what it can’t do under the Copyright Clause, so long as the subject matter is “copyright-like.”

I have always been a fan of Judge Baer, but never more than today.

  • Fred Brehm

    Do you plan to keep up this crusade forever? :-)

    Keep up the good work.


  • Thomas Hawk

    Score one for the good guys. One of my favorite things about visiting New York City is shopping the bootlegs at a lot of the record stores. Although the victory seems more based on a technicality it’s still nice to see nonetheless.


  • Joe Gratz

    Tom –

    Sure, it’s a technicality, in the sense that nobody’s arguing that he didn’t, in fact, do what the prosecutors say he did. But in this case, it’s an incredibly important technicality. This is a much larger victory because this is one of the first times that a court has held, in a copyright context, that the “limited times” language of the constitution has bite. We’ve had it said in dicta, we’ve had it said in the patent context (Graham), we’ve had courts hint that the language has bite and then decide the case on some other ground (Moghadam, the Mary Baker Eddy case).

    So this is an extremely good thing. The government seems likely to argue on appeal that the law was passed under Congress’s commerce power, not under the copyright clause (as in Moghadam). But even if the appeals court buys that argument, there are important structural differences between the “Writings” requirement, central to Moghadam, and the “limited times” requirement, central here. The Second Circuit will be able to avoid a circuit split if they want to.

    Further analysis, with links and such, is on my blog here.


  • Joe Gratz

    One more thing –

    I pulled the 64MB PDF into Acrobat and turned up the compression. It’s about 500K now, and still quite readable. Here’s the file.


  • kien

    I can hear Lars now: “Because of this unfortunate ruling, we will no longer tour and perform concerts.”

    Come to think of it, that wouldn’t be such a bad thing. :)

  • Branko Collin

    I seem to remember that when Metallica started sueing, who was it again, Napster?, Lars Ullrich told Slashdot that he did not mind boot legging, as in: people bringing recording equipment to concerts and taping the concerts. I think their problem was with the quality of the files being traded: perfect copies of CD tracks.

    Currently (again IIRC), they are selling high-quality recordings of their concerts through the web. At least they are taking a pro-active approach to changes in the copyright landscape, not to mention that they as authors at least have a moral right to do so.

    Ah well, seems to have some info on this.

  • Kop

    Short rant. I’ve never liked a constitutional provision being called a technicality. This is the spin that law enforcement puts on the 4th Amendment. The 4th Amend. and the Copyright limited times provision are long-standing rules which protect fundamental values. The importance of applying these basic rules should not minimized. The term technicality seems best reserved for instances where the dispute does not involve some fundamental and founding value, but rather an issue of lesser importance. For example, in the copyright context, some dispute over whether statutory damages would apply might hinge on a technicality.

  • Matt Winterroth

    Quick question that I am also posing to Wendy Seltzer on Engadget’s upcoming Q&A session – maybe some of you guys have some thoughts:

    If (or should I say when) this case reaches the 2d Circuit Court of Appeals, and is affirmed, what ramifications does this have for the DMCA?

    Said another way: since anti-circumvention techniques presented in the DMCA (which under US v. Martignon, is a “copyright-like” regulation, within the scope of the Copyright Clause) do not have a limited term, would an appellate level affirmation invalidate the DMCA?

  • Joseph Pietro Riolo

    To Matt Winterroth,

    DMCA is still limited by copyright term. Once copyright
    expires, DMCA has no force.

    The real trouble lies in GPL, some open licenses, and
    almost all restrictive licenses that do not have term
    limitation built in them. The limitations that these
    licenses impose on people and entities who agree to
    them (licensees) can last beyond the term of copyright.

    Joseph Pietro Riolo

    Public domain notice: I put all of my expressions
    in this comment in the public domain.