United States v. Martignon, No. 04-5649-cr (2d Cir. June 13, 2007) (Pooler, Sack, CJJ., and Garaufis, DJ).
In 2004, Jean Martignon was charged under 18 U.S.C. § 2319A, which makes it a crime to manufacture, publish or distribute “bootleg” recordings of musical performances; that is, those made without the consent of the performers. Martignon moved to dismissed the indictment, arguing that the statute violated the Copyright Clause, because live performances were unfixed, and hence not “writings,” and because the statute protected them in perpetuity, rather than for a limited time. The district court agreed, and granted the motion. Martignon also made a First Amendment argument, which the court did not get to.
The Appellate Court’s Decision
On the government’s appeal, the Court of Appeals reversed. Since the government conceded that Section 2319A could not have been enacted under the Copyright Clause, the court had to decide whether Congress had the …