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1853

Copyright Infringement—Unauthorized Fixation of and Trafficking in Sound Recording and Music Videos

The Uruguay Round Agreements Act of 1994, Pub. L. No. 103-465, 108 Stat. 4809, § 512 (1994), added to the federal criminal code a new offense relating to the unauthorized fixation of or trafficking in sound recordings and music videos of live musical performances. 18 U.S.C. § 2319A. Section 2319A is intended to reach those who systematically traffick in "bootleg" sound recordings and music videos, when done without the consent of the performers involved in the production of the recordings. Such cases might otherwise be prosecutable as criminal infringement of the copyrights in the underlying musical compositions but in passing the Act, Congress evinced its clear intent that the unauthorized trafficking in bootleg sound recordings and musical compositions, when done for purposes of commercial advantage or private financial gain, should be treated as serious offenses.

The Act requires the government to prove four elements. First, the government must show that the defendant either (a) fixed the sounds, or sounds and images, of a live musical performance in a copy or a phonorecord, or reproduced copies or phonorecords of a live musical performance from an unauthorized fixation, 18 U.S.C. § 2319A(a)(1); or (b) transmitted or otherwise communicated to the public the sounds or sounds and images of a live musical performance, 18 U.S.C. § 2319A(a)(2); or (c) distributed, or offered to distribute, sold or offered to sell, rented or offered to rent, or trafficked in any copy or phonorecord as described above, 18 U.S.C § 2319A(a)(3).

The government must also demonstrate that the defendant did these acts knowingly, "without the consent of the performer or performers involved," and "for purposes of commercial advantage or private financial gain." 18 U.S.C. §  2319A(a).

The terms "copy," "fixed," "musical work," "phonorecord," "reproduce," "sound recordings," and "transmit" are defined at 17 U.S.C. § 101. 18 U.S.C § 2319A(d)(1). "Traffic in" means to "transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of." 18 U.S.C. §  2319A(d)(2).

The prohibition at 18 U.S.C. § 2319A(a)(2) was intended to apply to unauthorized transmission of bootleg performances through radio or television. NOTE: The act was intended to apply only to unauthorized fixation, reproduction, transmission or distribution of live musical performances. Reproductions of performances other than live performances, such as unauthorized reproductions of previously recorded or fixed but unreleased performance (such as studio "outtakes") should be considered for prosecution under the criminal copyright law. 17 U.S.C. § 506(a) and 18 U.S.C § 2319.

It will be incumbent on the government to prove that the fixation, reproduction, transmission, communication or distribution occurred "without the consent of the performer or performers involved." 18 U.S.C. S 2319A(a). It is unclear whether testimony by representatives of the artist or the artist's recording label will be sufficient to establish proof of this element beyond a reasonable doubt. It is similarly unclear whether this statute may be used to reach "bartering" schemes. Cf. this Manual at 1851 (Element 4: Commercial Advantage or Private Financial Gain). Prosecutors are urged to consult with the Computer Crime and Intellectual Property Section prior to returning indictments under this new law.

[cited in USAM 9-71.001]