Copyright InfringementUnauthorized Fixation of
Trafficking in Sound Recording and Music Videos
The Uruguay Round Agreements Act of 1994, Pub. L. No. 103-465, 108
4809, § 512 (1994), added to the federal criminal code a new offense
to the unauthorized fixation of or trafficking in sound recordings and music
videos of live musical performances. 18 U.S.C. § 2319A. Section 2319A
intended to reach those who systematically traffick in "bootleg" sound
and music videos, when done without the consent of the performers involved
production of the recordings. Such cases might otherwise be prosecutable as
criminal infringement of the copyrights in the underlying musical
but in passing the Act, Congress evinced its clear intent that the
trafficking in bootleg sound recordings and musical compositions, when done
purposes of commercial advantage or private financial gain, should be
The Act requires the government to prove four elements. First, the
government must show that the defendant either (a) fixed the sounds, or
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
musical performance, 18 U.S.C. § 2319A(a)(2); or (c) distributed, or
to distribute, sold or offered to sell, rented or offered to rent, or
in any copy or phonorecord as described above, 18 U.S.C
The government must also demonstrate that the defendant did these acts
knowingly, "without the consent of the performer or performers involved,"
"for purposes of commercial advantage or private financial gain." 18 U.S.C.
The terms "copy," "fixed," "musical work," "phonorecord," "reproduce,"
"sound recordings," and "transmit" are defined at 17 U.S.C. § 101. 18
§ 2319A(d)(1). "Traffic in" means to "transport, transfer, or
dispose of, to another, as consideration for anything of value, or make or
control of with intent to transport, transfer, or dispose of." 18 U.S.C.
The prohibition at 18 U.S.C. § 2319A(a)(2) was intended to apply
unauthorized transmission of bootleg performances through radio or
NOTE: The act was intended to apply only to unauthorized fixation,
transmission or distribution of live musical performances. Reproductions of
performances other than live performances, such as unauthorized
previously recorded or fixed but unreleased performance (such as studio
"outtakes") should be considered for prosecution under the criminal
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
consent of the performer or performers involved." 18 U.S.C. S 2319A(a). It
unclear whether testimony by representatives of the artist or the artist's
recording label will be sufficient to establish proof of this element beyond
reasonable doubt. It is similarly unclear whether this statute may be used
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]